APPLICATION OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS DURING COURT CONSIDERATION OF CASES OF PROPERTY RIGHTS PROTECTION

Abstract

The article analyzes the obstacle factors to the application of the case law of the European Court of Human Rights (ECHR) in the protection`s mechanism of property rights. It is emphasized that the established application of the case law of the ECHR in the protection of property rights is the key to creating an attractive reputation of the Ukrainian real estate market, which can increase foreign investment and, consequently, improve the economy as a whole. The concept of protection and defense of property rights is differentiated, emphasis is placed on the fact that the case law of the ECHR is applied both in the protection of property rights and in all forms of protection of property rights, but it is unconditional that which can monitor compliance with the practice of the ECHR. The application of the case law of the ECHR on the protection of property rights by the courts was analyzed, and the main aspects that are obstacles in its application were identified. It is established and analyzed that the first aspect hindering the application of the ECHR practice is the incorrect, ambiguous understanding of the ECHR practice, which decisions can be used as a source of law, in particular, only decisions against Ukraine or all decisions on similar disputes. The second aspect is the declarative use of the case law of the ECHR, without substantiating it with the existing circumstances of the case, or the use of such practice of the ECHR, which does not concern or indirectly concerns the essence of the dispute. Declarative and irrelevant application of the case law of the European Court of Human Rights has been proven to lead to its formal existence in court decisions that continue to be adopted in accordance with the law, in fact it becomes impossible to comply with the Convention's safeguards. It is analyzed that in the norms of civil procedural law there is a direct indication in the motivating part of the justification of the chosen source of law, so the article suggests that the case law of the ECHR is a source of law to apply current case law and justify its connection with the circumstances of the case are considered.