Europos Žmogaus Teisių Teismo jurisprudencijos įtaka nacionalinei teisei bei jurisprudencijai, tobulinant žmogaus teisių apsaugą. Konvencijos ir Europos Sąjungos teisės santykis

Abstract

The European Convention on Human Rights adopted in 1950 was the first international treaty where the mechanism of the Convention system was established. The individual application right remains the most important achievement in the history of international law, when a person was granted the rights to bring his/her claims before the international justice against his/her own State.
The European Convention on Human Right can be today described as ordre public for the whole Europe and the minimum standard for the protection of human rights. The States are entitled to establish wider standards for human rights protection at national level, but they cannot in any way ignore the requirements of the Convention and its jurisprudence at national level.
European Court on Human Rights established in 1959 is a fully judicial body. This was the breakthrough achieved by the European Convention on Human Rights: the setting up of an international judicial mechanism before which States could be called to account for breaches of human rights. The role of the Court is to guarantee the essential features of democracy and the rule of law set out in the Convention.
It should be noted that in the year of 1998 the Protocol No. 11 entered into force amending the Convention system; the European Commission on Human Rights was abolished and a single, full-time Court has been introduced. These changes strengthened the judicial character of the system. After this reform, a new reform is foreseen in the new Protocol No 14, which was adopted in 2004. The Protocol No 14 to the Convention enshrines many provisions in order to help the Strasbourg Court to remain an effective international instrument, where the number of cases has been increasing in a geometrical progression during the last years.
According to the idea and task of the Convention system, the Court had recognised the subsidiary character of the Convention system in its earlier case-law, by which it meant that it was primarily for the national authorities and particularly the national judicial authorities to secure the rights enshrined in the Conven- tion. This places the burden mainly on the Supreme and Constitutional courts of the State Parties to the Convention [19, p. 70– 71] and helps to protect better the human rights and fundamental freedoms of people within the States’ jurisdiction. The relationship between the EU system and the Convention system is not very clear yet. The Protocol No 14 foresees the possibility of the EU to accede to the Convention. On the other hand, the EU Fundamental Charter on Human Rights also establishes that the Charter gives a priority to the jurisprudence of the European Court of Human Rights with regard to the same rights guaranteed in both documents. One conclusion can be drawn – two separate systems have the same main task – to protect human rights – and they are able to cooperate with regard to the task mentioned. This can be clearly seen from the judgment of the ECHR in the case Bosphorus Hava Yollari Turizm ve Tocaret Anonim Sirketi v. Ireland.
Lithuania is implementing the European Convention on Human Rights in its legal system perfectly. The Lithuanian legal system has been developing for the last ten years very progressively in line with the requirements of the Convention. Many new laws have been enacted or amended in order to comply with the requirements of the Convention at domestic level or to ensure full respect for the judgments of the European Court in cases against Lithuania. Lithuania has adopted a new Civil Code, Civil Procedure Code, Criminal Code and a Code on Criminal Procedure which is very important for the proper implementation of all the guarantees of Articles 5 and 6 of the Convention at domestic level.
In particular, an important amendment has been introduced with regard to detention on remand which must in every case be approved by a court decision; detainees have been given a right to bring prompt proceedings by which the lawfulness of their detention can periodically be reviewed by a court; furthermore, the death penalty as a criminal punishment was eliminated from the Criminal Code. Many other Lithuanian laws have been changed or even newly enacted in order to ensure their compliance with the Convention.
There is a clear tendency in the cases where the Court has found a Convention violation by Lithuania. They have become legally more complicated, they raise issues in respect of various Convention guarantees, and they have are better prepared. The first Lithuanian cases, in the main, tended to be related to detention on remand problems and procedural guarantees under Articles 5 and 6 of the Convention. Currently, various interesting aspects under the Convention have been communicated to the Government and/or are being examined by the Court, e.g., the inability to undergo full gender reassignment surgery in the absence of a law specifying the conditions and procedure for such surgery, legality of the use of secret investigation methods and fulfilment of fair trial guarantees under Article 6, granting custody rights, etc).
The conclusion can be drawn that the Lithuanian legal system has already learned a lot from the jurisprudence of the Convention and nowadays Lithuanian courts are prepared to apply the Convention directly at national level. Without taking into account the fact that traditional Lithuanian jurisprudence is based mostly on domestic sources of law, the European Convention on Human Rights has the statutory force in the legal system of Lithuania and can be directly applied by the Lithuanian courts. Therefore the conclusion can be drawn that the European Convention has become a meaningful instrument for the protection of human rights in Lithuania, as well as in the rest of Europe.