Incorporation
of the European Convention on Human Rights
Protection
into the National Law in the Post-soviet Countries.
Problems and Perspectives
Summary
Each
of the member-countries of the European Convention has its own constitution,
political history and legal system. The constitutions and legal systems acting
in these countries are rather different. Some of the constitution date back
to about 100 years, others have been created in recent ten years, when the Eastern
and Central-European countries were getting rid of the communistic influence.
Almost in all of the countries the national constitutions provide a certain
level of individual rights and freedoms. But the constitutions greatly differ
in defining those protected rights and freedoms (catalogue of rights) and also
in the way of realizing those rights and freedoms.
These diverse national judicial systems are the
bearers of the burden of individual rights and freedoms protection. The task
of the Convention is to elaborate those systems and to provide the compensation
of the loss on the international level if it is not provided on the domestic
level.
In this situation, from our viewpoint, a number of
imperatives come out for the post-soviet countries:
the countries must a) directly provide the observation
of certain rights and freedoms, protected by the Convention, within the frame
of national law; b) provide a procedure in the national law, allowing private
persons to use the tools of legal protection in cases of violation of their
rights provided by the Convention.
As the Convention doesn't provide any definite decision
for this very matter, the measures of realization of the Convention within national
laws highly differ.
These differences are mainly reflected in the various traditions and modes of
national laws, related to the competence of the executive power to signing of
agreements, as well as to the mutual relation of the international law to the
national ones. In some of the countries the legal tradition tends to the "monism"
- an attempt to minimize the contradictions between the national and international
law. In other countries the tradition tends to "dualism", which supposes a clear-cut
differentiation of national and international law.
For the post-soviet countries any kind of ambiguity
in material law threatens with the possible violation of the latter. This is
why the Austrian sample is the possible violation of the latter. This is why
the Austrian sample is the most convenient one for the post-soviet countries
in this matter. Austria has gone in this field farther than the other countries:
here the Convention is given a status of a national constitution, thus it possesses
a priority over the possible contradicting items of the national law, regardless
of the date of their adoption. The Constitution Court of Austria is ready to
execute the decisions of the Strasbourg Court about the interpretation of the
Convention.