Year: 2025
Type: article
Abstract: The article analyzes various aspects of the ECHR’s activities related to the issues of state sovereignty. The author examines the essence of the principle of subsidiarity in the work of the ECHR, in particular, its substantive and procedural aspects. It is emphasized that the ECHR cannot substitute itself for competent national authorities, and each state is free to choose the means of remedying violated human rights. The author analyzes the doctrine of “margin of appreciation”, which refers to the ability of the state to restrict fundamental human rights in certain cases. The principle of evolutionary interpretation of the Convention is of great importance for the ECHR, which provides for the consideration of relevant changes in society, culture and morality in the course of such interpretation. The author emphasizes the role of the so-called “autonomous interpretation” of the Convention, according to which the ECHR is not bound by the provisions of national law in its assessments. The author characterizes the so-called “pilot judgments” of the ECHR, which refer to the existence of a structural or systemic problem in the State and the necessary measures to address it. A safeguard against the court’s overly expansive interpretation of the ECHR was the adoption in 2013 of a protocol which clearly outlined the limits of subsidiarity. It is emphasized that many ECHR precedents are criticized, in particular, regarding the priority of conventional law over constitutions (the case of NGOs that reported on abortions in Ireland) or are not implemented by the country’s authorities at all, since they require changes to current legislation (the case of the right to vote of convicts in Britain). The article analyzes disputes over extraterritorial jurisdiction, in particular, the responsibility of the state for the actions of its officials or subordinate administration in the case of exercising “effective control” over them. The case of El-Masri v. Macedonia, which concerned the use of torture by CIA agents in Afghanistan, where he was illegally taken from Macedonia with the assistance of the latter’s authorities, and the case of Hirsi Jamaa v. Italy, which concerned the forced deportation of Somali and Eritrean refugees to Libya on Italian Navy ships, were considered. The Al-Adsani case, which was important for the ECHR, concerned the resolution of the complex problem of the correlation between peremptory norms in the field of human rights and state sovereignty.
Author: Тимчук, О. Л.
Institution: National University Zaporizhzhia Polytechnic
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7072556150
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