Issue: № 8, 2024
Doi: https://doi.org/10.37634/efp.2024.8.1
The research attempts to form the essence of the modern understanding of the right to a fair trial through the prism of the minimum guarantee of legal assistance. Attention is drawn to the fact that the European Convention itself does not define the mechanism of its application, which in turn complicates its application by different states with certain differences in legal systems. In this regard, it is substantiated that by ruling on the application of the European Convention, the European Court of Human Rights (ECHR) sets the direction for building one of the most effective systems of human rights protection, which is subsequently manifested in the national systems of the Convention member states. In view of this, the article analyses the most important, key and modern practice of the ECHR in relation to consideration of applications for violation of the minimum guarantee of legal assistance in the context of violation of the right to a fair trial and summarises it, as well as identifies the risks of such an approach. In addition, the paper analyses the current conceptual vision of such transformations from the point of view of legal scholars, both academics and practitioners. In the course of analysis of modern ECHR judgments, the author found that in a significant number of them the Court indicates that the mere violation of the minimum guarantee of legal assistance does not automatically mean a violation of the right to a fair trial, and the author emphasizes the possible risks of such an interpretation, in particular, for the States which are leaders in violation of the guarantee of legal assistance, where the specifics of national systems reflect a systematic violation of this right. It is determined that the application of the minimum guarantee of legal assistance is not limited to criminal proceedings, and the court is not the only institution that must comply with this guarantee to ensure fairness of the proceedings. It is also emphasised that the practice of applying this guarantee cannot be limited to court proceedings only. The author also suggests improving the legal technique of implementing the European Convention into national legislation by amending its translation into Ukrainian.
Keywords : European Convention, European Court of Human Rights, ECHR, minimum guarantees, fair trial, legal assistance
References:
1. European Convention on Human Rights: European Court of Human Rights, Council of Europe, 4.XI.1950. URL: https://www.echr.coe.int/documents/d/echr/convention_eng
2. Council of Europe Office in Ukraine. 70 years of the European Convention on Human Rights. URL: https://www.coe.int/uk/web/kyiv/-/70-years-of-the-european-convention-on-human-rights (in Ukrainian).
3. Lyashenko R.D., Dobrovinsky M.M. Interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of modern concepts of law understanding. Journal of Kyiv University of Law. 2020. №3. pp. 361-365. (in Ukrainian).
4. Havryliuk O. Problematic issues of application of the European Court of Human Rights case law by national courts. Enterprise, economy and law. 2018. №4. С. 231-238. URL: http://pgp-journal.kiev.ua/archive/2018/4/40.pdf (in Ukrainian).
5. Goss R. The Disappearing ‘Minimum Rights’ of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze. Human Rights Law Review. 2023. V.23. I. 4. URL: https://academic.oup.com/hrlr/article/23/4/ngad024/7264270
6. European Court of Human Rights. Annual Report 2023. URL: https://www.echr.coe.int/documents/d/echr/annual-report-2023-eng
7. Flynn А., Hodgson J., Mcculloch J., Naylor B. Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial. Melbourne University Law Review. URL: https://law.unimelb.edu.au/__data/assets/pdf_file/0006/2099373/06-Flynn-et-al.pdf
8. European Court of Human Rights. HUDOC. URL: hudoc.echr.coe.int/eng#{"article":["6"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"violation":["6-1+6-3-c"]}
9. European Court of Human Rights. Selection of key cases. URL: https://www.echr.coe.int/en/selection-of-key-cases
10. Harris D., O'Boyle M., Bates E., Buckley C.M. Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights. 2023. URL: https://www.oxfordlawtrove.com/view/10.1093/he/9780198862000.001.0001/he-9780198862000
11. Kyryliuk D. International legal standards of the right to legal assistance and their implementation in the legislation of Ukraine. Law Journal. 2005. № 12. pp. 46-48. (in Ukrainian).
12. Isakova V.M. The right to legal assistance as an element of the principle of access to justice. Forum of Law. 2012. №4. pp. 404-410. URL: https://dspace.nlu.edu.ua/bitstream/123456789/2055/1/ISakova.pdf (in Ukrainian).
13. Kuchiv O. The right to defence. Application of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms during pre-trial investigation: the case law of the ECtHR in relation to Ukraine. URL: https://lexinform.com.ua/dumka-eksperta/pravo-na-zahyst-zastosuvannya-statti-6-konventsiyi-pro-zahyst-prav-lyudyny-i-osnovopolozhnyh-svobod-pid-chas-dosudovogo-rozsliduvannya-praktyka-yespl-shhodo-ukrayiny/ (in Ukrainian).