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Vladimir Jilkine the ROLE of the EUROPEAN COURT of HUMAN

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Vladimir Jilkine the ROLE of the EUROPEAN COURT of HUMAN doi:10.25143/prom-rsu_2016-08_dts Vladimir Jilkine THE ROLE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN ENSURING THE RIGHT TO A FAIR TRIAL WITH THE REPUBLIC OF LATVIA AND REPUBLIC OF FINLAND AS AN EXAMPLE Summary of Doctoral Thesis for obtaining the degree of the Doctor of Law Speciality – Law Subfield – International Law Riga, 2016 Vladimir Jilkine THE ROLE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN ENSURING THE RIGHT TO A FAIR TRIAL WITH THE REPUBLIC OF LATVIA AND REPUBLIC OF FINLAND AS AN EXAMPLE Summary of the Doctoral Thesis for obtaining the degree of the Doctor of Law Speciality – Law Subfield – International Law Riga, 2016 The Doctoral Thesis was carried out at Rīga Stradiņš University Scientific supervisor: Dr. iur., Professor Vitolds Zahars, Rīga Stradiņš University, Latvia Official reviewers: Dr. iur., Professor Aivars Endziņš, Turība University, Latvia Dr. iur., Dr. psych., Professor Viktoras Justickas, Mykolas Romeris University‚ Lithuania Dr. iur., Associate Professor Jānis Grasis, Rīga Stradiņš University, Latvia Defence of the Doctoral Thesis will take place at the public session of the Doctoral Council of Legal Sciences on 1 November 2016 at 10.00 in Hippocrates Lecture Theatre, Dzirciema Street 16, Rīga Stradiņš University. The Doctoral Thesis is available at RSU Library and RSU homepage: www.rsu.lv The thesis was elaborated with the financial support under the ESF project of “Support for the Acquisition of Doctoral Study Programmes and Scientific Degree at Rīga Stradiņš University”, agreement No. 2009/0147/1DP/1.1.2.1.2./09/IPIA/VIAA/009. Secretary of the Promotion Council: Dr. iur., Professor Sandra Kaija 2 CONTENTS General description of the doctoral thesis ....................................................... 4 1. LEGAL MEANING OF THE CONSTITUTION OF THE REPUBLIC OF LATVIA AND THE REPUBLIC OF FINLAND AS THE DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS FOR THE NATIONAL LAW PROCEEDING ........ 13 Brief summary of Chapter 1 ..................................................................... 17 2. RIGHT TO A FAIR TRIAL BY A COMPETENT, INDEPENDENT AND IMPARTIAL TRIBUNAL ESTABLISHED BY LAW ................. 19 Brief summary of Chapter 2 ..................................................................... 25 3. REVIEW OF LAWSUITS IN THE SUPREME COURT OF THE REPUBLIC OF LATVIA AND THE REPUBLIC OF FINLAND ......... 27 Brief summary of Chapter 3 ..................................................................... 32 4. EQUALITY OF PARTIES AND FAIR TRIAL GUARANTEES FROM THE POSITION OF EUROPEAN COURT OF HUMAN RIGTHS ............................................................................. 34 Brief summary of Chapter 4 ..................................................................... 36 CONCLUSION ............................................................................................. 38 PRACTICAL RECOMMENDATIONS ........................................................ 42 LIST OF REFERENCES AND OTHER SOURCES .................................... 48 ACKNOWLEDGEMENTS .......................................................................... 55 3 GENERAL DISCRIPTION OF THE DOCTORAL THESIS This research is the first comparative study on a detailed investigation of the values of the European Convention and the role of the European Court of Human Rights to ensure the right to a fair trial in the Constitutional Court and the Supreme Court of the Republic of Latvia and the Supreme Court of the Republic of Finland, including the consideration of claims that have come into enforceable decisions of national courts. The basis for the review of the case in court is, in particular, the establishment of the European Court of Human Rights violations of the provisions for the Protection of Human Rights and Fundamental Freedoms and the attached Protocols. The author has studied and analyzed the materials of the Constitutional Court's decisions and the three departments of the Supreme Court of the Republic of Latvia, as well as the decisions of the Supreme Court and the Supreme Administrative Court of the Republic of Finland between 2010 and 2015, including the claims review for quashing of the final criminal cases on the basis of ECHR decisions made on the recognition of violations of articles of the Convention and its protocols. According to the questionnaire, developed by the author, a sociological survey was conducted in the Republic of Latvia and thr Republic of Finland. This paper used and analyzed decisions, published on the official websites of the European Court of Human Rights, the Constitutional Court, Supreme Court and the Prosecutor's Office of the Republic of Latvia, reports the Government of the Republic of Latvia on the implementation of ECHR decisions, as well as data obtained from the Supreme Court and Supreme Administrative Court of Republic of Finland, related to the implementation of the ECHR case law, showing patterns and marked deviations from the implementation of ECHR decisions in an event of a conflict between international law and the Constitution of the state. Relevance of the paper. Ensuring provision of human rights is a basic principle of a democratic state, as well as one of the elements of the rule of law. The State has the responsibility to provide the human rights and freedoms, as well as to eliminate any potential violations. The preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) states that respect for human rights and fundamental freedoms can best be accomplished by an effective political democracy. 4 This Doctoral thesis for the first time considered the comparison between adjudication ruling of the European Court of Human Rights in Republic of Latvia and Republic of Finland, with the analysis of the review of cases through national judicial procedure based on the recent findings made by ECHR of violations of the Convention and its protocols. The author conducted a comparative analysis of international and national legislations of the Latvian Republic and the Republic of Finland, judicial practice, study of findings and the basis of decision by the Constitutional Court as well as the three Departments of the Supreme Court of the Republic of Latvia, the Supreme Court and the Supreme Administrative Court of the Republic of Finland, author proposes the following research questions for consideration: 1. How to apply the European Convention and the international standards of human rights in the national court system to an extent that does not lead to decrease or limitation of fundamental rights included in the Constitution? How to keep the constitutional sovereignty of the state and improve the protection of the rights and freedoms of man and citizen guaranteed by the Constitution and the European Convention? 2. How to use the provisions of the Convention to ensure the right to a fair trial in Latvia and Finland, which is independent of politics and based on the rule of the Constitution and the application of international law to the extent that does not lead to decrease or limitation of fundamental rights included in the Constitution? How to optimize a fair trial in the lawsuit to quash the previously made decisions of the national court on the basis of newly discovered facts about the recognition of a violation of the ECHR and its Protocols? 3. What is the priority in addressing judicial errors identified by the ECHR - ECHR decision or the Constitution of the Republic of Latvia and the Republic of Finland and whether the practice of courts in Latvia and Finland corresponds to the requirements set by the ECHR on the right to a fair trial? 4. Can judgments delivered by ECHR on the appeal be enforced against Latvia and Finland, if it leads to a contradiction with the Constitution, and calls into question the supremacy of the Constitution, which has in the legal system a higher legal force in relation to any legal acts? 5 Scientific novelty of the Doctoral Thesis is: 1. Doctoral thesis is a study on the theoretical understanding of the role of the ECHR, the ECHR case – law in the system of law in these countries and the case-law of the Constitutional Court and the three departments of the Supreme Court of the Republic of Latvia, the Supreme Court and the Supreme Administrative Court of Finland, the consideration of claims for cancellation of decisions which entered into force of judgments by national courts after the ECHR identifies a violation of articles of the Convention or its’ Protocols. 2. From the analysis of decisions of the Constitutional Court of the Republic of Latvia and the Supreme Court of the Republic of Finland, concluded that the priority of the Constitution of the resolution of the constitutional and legal conflicts that may arise in connection with the interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms. 3. In a study presented to the comparative analysis of the Constitution of the European countries, Russia and the USA, on the basis of which the author presented the position that the protection of national security and human rights of the Constitution states take precedence over international law, which only complement its basic principles. 4. To conduct a comparative study of the problem of compliance enforcement practice of Latvia and Finland with European standards of justice analysed the jurisprudence of the European Court of Human Rights and its application in the proceedings of these countries. 5. Scientific novelty of the study is a research into the influence of European
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