THE ROLE OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN ESTABLISHING THE CONSTITUTIONAL RIGHT TO A FAIR TRIAL: PROBLEMS OF INCORPORATION

Abstract

The article examines the problems of incorporation of the European Convention for the protection of human rights and fundamental freedoms and other international documents into the constitutional realities of the formation of the right to a fair trial in European states and, in particular, in Ukraine. It is noted that the problem of the correlation between national and international law in regulating the fairness of judicial proceedings is only part of a more general problem of the correlation between domestic and international law, so its study requires proper consideration of scientific ideas of a fundamental nature. From the analysis of the constitutions of European states, it can be concluded that their provisions do not contradict the norms on a fair trial contained in Article 14 of the International Covenant and Articles 5 and 6 of the ECHR. It is determined that the International and constitutional domestic regulation of the right to a fair trial is a fait accompli of ratification of these documents by states, which means that there are no obvious contradictions between the constitutions of states and the norms of these treaties, but in relation to other norms of national law and international treaties, everything is not so clear, because most constitutions do not deal with treaties in terms of determining their place in relation to domestic norms. It is noted that if there are no special requirements in the legislation regarding the relationship of an international treaty with laws, then within the framework of interpretation, its priority in relation to the latter is usually recognized as “lex specialis”, since such a treaty regulates certain relations in which states themselves have agreed on special regulation by the act of agreement. It is noted that there are two options for solving the issue of correlation between the norms of contracts and the norms of laws. The first option is represented by situations where an international treaty has more legal force than a law. In this version of the Constitution, it is stipulated that the norms of contracts cannot be changed or repealed by law. The second solution to the question of the relationship between a treaty and a law is to endow an international treaty with a force equal to that of a law. It is noted that, in fact, there should be no contradiction between international and constitutional documents, especially since the Constitution of Ukraine was developed in the best legal traditions, which implies flexibility in its interpretation. Such knowledge also includes international legal standards that Ukraine has recognized as mandatory. It is proved that it is impossible to completely exclude the appearance of such disagreements, since, as the judicial practice of foreign countries shows, disputes about the constitutionality of international agreements arise relatively often. It is stated that unlike the constitutions of European states, in particular the Netherlands, the Constitution of Ukraine does not contain a procedure for eliminating the imbalance of international and national legislation. Thus, it is concluded that in Ukraine, no rule of an international treaty can be implemented in internal national relations if it is not consistent with state constitutional laws and, in fact, with the Constitution of Ukraine.