MINISTRY OF EDUCATION AND SCIENCE OF UKRAINE National University “Odesa Law Academy” Southern Regional Centre of the National Academy of Legal Sciences of Ukraine ECHR’S JURISPRUDENCE IN DIGITAL ERA PROCEEDINGS of International Scientific Conference May 31 – June 1, 2019 Odesa 2019 UDC 34:004.9(063) Е19 Approved by the National University “Odesa Law Academy” Scientific Council Protocol № 8, May 22, 2019 Executive Editors H. A. Ulianova, V. A. Tuliakov. Published in author’s edition. ECHR’s Jurisprudence in Digital Era : proceedings of the Е19 Int. sci. conf. (Odesa, May 31 – June 1, 2019) / MES of Ukraine, Nat. Univ. “Odes. Acad. of Law”, SRC NALSU ; exec. eds. H. A. Ulianova, V. A. Tuliakov. – Odesa : Publishing house “Helvetika”, 2019. – 342 p. ISВN 978-966-916-837-5 Materials of the international scientific conference «ECHR’s Jurisprudence in Digital Era» are devoted to new age of modern legal methodology in the European jurisprudence; European Court of Human Rights case law; future law school and the rule of law crisis. The modern legal problems connected with the need to ensure appropriate realization of human rights in the sphere of digital technologies, the Internet of things and artificial intelligence are considered. UDC 34:004.9(063) © National University “Odesa Law Academy”, 2019 © Southern Regional Centre of the National Academy ISBN 978-966-916-837-5 of Legal Sciences of Ukraine, 2019 3 PRESIDENT OF UKRAINE To Participants and Guests of International Scientific and Practical Conference Dear Participants and Guests! Sincerely congratulate you with the beginning of the International Scientific and Practical Conference “ECHR’s Jurisprudence in Digital Era”. I believe, theoretical and applied studies` results that will be presented at the International Conference provide us with the effective use of European Court of Human Rights` practice in our country, contribute to the improvement of its decisions enforcement mechanisms and have practical significance during the current legislation amendments` development, provided for this Judicial institution judgements and decisions` implementation need. Wish to all of you success, interesting discussions and significant achievements. Volodymyr ZELENSKYY 4 5 THE GREETING ADDRESS OF THE PRESIDENT OF THE NATIONAL UNIVERSITY “ODESA ACADEMY OF LAW”, ACADEMICIAN SERHII KIVALOV Dear colleagues! I’m very pleased to welcome everybody at the International scientific conference “ECHR’s Jurisprudence in Digital Era”. The ambitious academic event being run in the National University “Odesa Law Academy” joined the judges of the ECHR, Supreme Court, Constitutional Court of Ukraine, the leading judges, attorneys, lawyers, scientists from all Ukraine. Today, due to the rulings of the ECHR, the rights and interests of thousands citizens were protected, that hopelessly tried to restore them applying to State authorities and courts. The ЕСHR is the court of hope to the Rule of law and Justice. The judgments of Strasbourg Court are not only aimed to protect the applicant’s rights and interests, but also are the framework for the formation of the national jurisprudence. Such responsible mission requires the considerable efforts, as each judgement based on the international law, is not always acceptable for certain states. At all conclusive importance of the judgments of the ЕСHR for implementation, the improvement of national legislation of some states, formation of common standards in the domain of realization and protection of the rights of citizens, there are still exist a lot of problems. Almost always they are connected with the performance appraisal of Strasbourg court and execution of the submitted judgments. Since signing the Convention for the Protection of Human Rights and Fundamental Freedoms in 1950, in geopolitical world map serious changes took place, rapid development was received by the domain of information technologies. And though the values set up in the Convention to be constant, the ЕСHR on making judgments uses such categories, concepts and terms that not always correspond accepted definition which developed in standard and judiciary practice of States – the Parties to the Convention. It is therefore the doctrine policy of the Court and its independence from national 6 approaches and doctrines are defined. Moreover, as a result of necessity of the Court practice for national judicial and administrative bodies this politics acquired the supremacy features. The theme of the Conference “ECHR’s Jurisprudence in Digital Era” is caused by the necessity of the problems’ solving that arise in modern society with progressive development of information technologies. Today in a state of innumerable information flows, boundless and at times unattended access to any information, the questions of personal safety, protection of right to private life, protection of honour, dignity and business reputations are actualized. All fields of the activity of the State, society and citizens face global changes. During the period of reforms in Ukraine that to be held in judicial, law system, legal profession, constant changes in the legislation, it is important to provide an effective protection of citizens, also against illegal acts or omissions committed by the administration. Unfortunately, national institutions are not always able to provide the proper protection of rights and interests of natural and legal persons. It manifests itself in the amount of references to the ЕСHR on the infringements of the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular, Article 5 “Right to liberty and security of person”, Article 6 “Right to a fair trial”, Article 8 “Right to respect for private and family life”, Article 10 “Freedom of expression”, Article 13 “Right to an effective domestic remedy”, etc. The protection of rights in the EСHR depends not only on decision- making, and primarily on the readiness of States -– the Parties to the Convention to conduct them timely and proficiently. The amount of applications being submitted on similar infringements suggests the presence of system and/or structural problems existing in the State. Reference to the structural problems in the judgments of the ЕСHR is called to help the States in search of suitable solutions. As it will allow not only to improve the level of protection of rights and interests of citizens, but also to diminish the amount of complaints substantially, primary amount of which are unacceptable ones. To produce the common recommendation for all States – the Parties to the Convention Conventions on performance of the judgments of the EСHR and the proposals for adjustment of legislative and institutional arrangements of increase of the level of protection of 7 rights and interests of citizens is not feasible. It is caused, first of all, by different political, social and economic national factors. That is why it is important to analyze the practice of consideration by the ЕСHR of complaints of certain States. This could reveal the most often repeated infringements, timeliness and completeness of performance of the judgments of the ЕСHR and on the grounds of received information to develop recommendations for improvement of legislative and institutional arrangements of effective legal protection within the national level. I am certain that the International scientific and practical conference “ECHR’s Jurisprudence in Digital Era” will set a solid foundation to conduct the scientific researches for execution of the judgments of the ЕСHR in Ukraine and will become a good tradition of Odesa Law School. Professionalism of the participants in the conference, the practical experience and deep theoretical knowledge will help to produce the structural proposals directed to increase in the activity of the ЕСHR efficiency, the public authority, ensuring of legal security of citizens and to support the Rule of Law in the State. I extend to all the participants a fruitful discussion, productive co-operation, creative inspiration and good luck to achieve the objectives! Serhii Kivalov, Doctor of Law, Professor, Academician of the National Academy of Legal Sciences of Ukraine, President of the National University «Odesa Law Academy» 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 SECTION 1. NEW AGE OF MODERN LEGAL METHODOLOGY IN EUROPEAN JURISPRUDENCE HARUTYUNYAN A. A. European Court of Human Rights, Judge in respect of Armenia NEW DIMENSION OF THE CASE-LAW WITHIN THE ARTICLE 10 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: FREEDOM OF EXPRESSION (DELFI AS V. ESTONIA) Key words: European Convention, case-law, human rights. Some aspects of the theory. Article 10 guarantees freedom of expression [1; 2; 3], one of the cardinal rights guaranteed under the Convention. The marked importance attached to this right is readily explicable by its close linkage to democracy’s political process and its role as an indispensable vehicle for minorities, political opponents, and civil society to foster public debates. Such a constitutional underpinning of freedom of expression lends succour to the consistent assertion of the Court that interference with this right can be justified only by “imperative necessities”, and that exceptions to this right must be interpreted narrowly [4; 5; 6, p. 592]. Positive obligations. The Court has departed from its earlier approach of refraining from formulating a general theory on positive obligations and on the extent to which the Convention can be applied to relations between private