The understanding of the term «family life» in the context of Art. 8 of the Convention for the Protection on Human Rights and Fundamental Freedoms

• Main Author: Ж. В. Чевичалова
• Format: Article
• Language: English
• Published: Yaroslav Mudryi National Law University 2016-03-01
• Series: Теорія і практика правознавства
• Subjects: family life; private life; human rights; fundamental freedoms; understanding of the convention's art. 8
• Online Access: http://tlaw.nlu.edu.ua/article/view/63888

Since the extension of jurisdiction of the European Court of Human Rights to Ukraine, when European Convention on Human Rights and Fundamental Freedoms came into force (11 September 1997; ratified on July 17 of the same year), there are examples of estimation of norms of Ukrainian legislation in General, and Art. 8, which is the subject of our consideration, from the point of compliance with the provisions of the Convention. Unfortunately, the annual practice of the Strasbourg Court demonstrates the discrepancy of the legislation of Ukraine with the provisions on protection of rights guaranteed by the Convention itself and the Protocols thereto. Ukraine is consistently among the top five on amount of applications on the protection of violated rights to the European Court of Human Rights, taking into the accountand the fact that object to the appeal against Ukraine could be violations committed since 11 September 1997. On the contrary, there is consistently low percentage of enforcement of the European Court Judgments on Ukraine, particularly in damages. Our work is in grater extent devoted to understanding of the concept of «family life» within the meaning of Art. 8 of the Convention and its relationship with the concept of «private life». Current understanding of the concept of «family life» by the Convention passed a certain evolutionary way. Not accidentally Art. 8 of the Convention aplies the term «family» using a multifaceted construction «family life», and of coursr, considering understanding of «family» in face legal orders. Understanding of the concept of «family life» constantly goes through expansion due to the influence of different social processes, from migration to advanced medical technologyies, that illustrates the application of the principle of effective and dynamic interpretation of law the Strasbourg court. This principle stipulates the evolutionary interpretation of Convention norms, transforming Convention into a living instrument that responds to the changing of present situation and allows to constantly expand guarantees provided by this document. In the examples considered in the paper, we note that the interpretation of the term «family life» primarily carried out by the Court from giving preference to protecting the interests of children, even if not their rights are violated in fact.