Europos Sąjungos pagrindinių teisių chartijos, kaip individualių teisių gynybos standarto, taikymas supra- ir nacionaliniu lygmenimis: kolektyvinė monografija
| Author | Affiliation | |
|---|---|---|
Žalimienė, Skirgailė | ||
| Editor | Affiliation |
|---|---|
Žalimienė, Skirgailė |
| Date |
|---|
2019 |
Knygoje apibendrinami ir analizuojami svarbiausi procesai pagrindinių teisių srityje, atkreipiant dėmesį tiek į padarytą pažangą, tiek į išliekančias kliūtis. Monografija parengta apibendrinus tyrime „ES chartijos, kaip individualių teisių gynybos standarto, taikymas supra- ir nacionaliniu lygmenimis“, kurį finansavo Lietuvos mokslo taryba, padarytas išvadas. Šiame tyrime kompleksiškai buvo tiriamas Chartijos, kaip pagrindinių teisių veiksmingos gynybos standarto, taikymas supra- ir nacionaliniu (ypač Lietuvos) lygmenimis ir šiuo kontekstu: EŽTK, ES teisės bendrųjų principų, pagrindinių teisių, kurias užtikrina Chartija, ir pagrindinių teisių, kurios kyla iš valstybėms narėms bendrų konstitucinių tradicijų.
Summing up the quantitative study on the recourse to the provisions of the Charter when defending individual rights in the national governmental and judicial authorities in Lithuania, the conclusion can be made that parties in the litigation rarely rely themselves on the provisions of the Charter. According to the study, the provisions of the Charter are applied in their practice by four out of ten legal practitioners. The provisions of the Charter are more often referred by judges, rather than by other lawyers and prosecutors. The representatives of the Senior Commission of Administrative Disputes pointed out that, in almost 90% of all cases where they applied the provisions of the Charter, this has been done on their own initiative. Therefore, in conclusion, in Lithuania individuals and legal professionals yet do not consider the Charter as an effective means for the protection of individual rights. Several open questions presented in the research questionnaire have helped to identify the problematic aspects and the proposals by the respondents regarding the case law relevant to the application of the Charter at the national level. One of these issues is the uncertainty about the difference between the levels of the protection ensured by the Charter and the ECHR. The research indicates that in Lithuania there is a lack of information on the significance and the scope of application of the Charter. This conclusion can be made not only from the responses of the respondents to the questionnaire, clearly indicating a particular lack of training in this area, especially for prosecutors and lawyers. It is also clear from the data demonstrating that the control questions regarding the scope of application of the Charter have been correctly answered only by a small percentage of the respondents. In addition, more than a half of the representatives of the governmental authorities, who pointed out that there is no lack of additional training or information about the application of the Charter, have not provided correct answers to those control questions. For example, the results of the study demonstrate that nearly 30 percent of court servants apply the Charter and the ECHR or follow the Charter and the ECHR always together; the respondents from Prosecutor’s Office has a similar have demonstrated the similar practice – a third (33%) of them stated that they apply or follow both acts together when dealing with human rights; nearly even two-thirds (65%) of respondents working as lawyers also apply the Charter or follow it alongside with the ECHR. Bearing in mind that the scope of application of the Charter and the ECHR is different, the answers of the respondents allow to assume that fundamental rights proclaimed by the Charter and human rights enshrined in the ECHR are treated similarly by the respondents, without emphasising the scope of application of the Charter and the ECHR and corresponding differences in the legal content of those rights. Thus, in this respect, the results received in Lithuania only confirm a trend which is apparent from the survey of all the EU citizens by the “Eurobarometer”, which was carried out in 2014. According to the latter, the subjective perception of individuals what knowledge they have about the Charter is different from their actual knowledge level. Most of the respondents (57%) who indicated in their answers that they know well the provisions of the Charter, however, chose the wrong option when were requested to answer with which statements on the scope of application of the Charter they agree. In their view, they can rely on the Charter without limitations for the defence of their rights, including for the disputes under national law. The analysis of the approaches and needs of individuals, human rights defenders, civil servants and officials involved in the decision-making demonstrates a lack of information about the particularities of the application of the Charter at the national level. According to some legal practitioners, the Charter is a secondary source for the interpretation of law, which is only complementary to the existing national laws or the ECHR. In the opinion of other respondents, the Charter takes into account the concerns of these days. However, there is a significant lack of knowledge and good practice examples of the application of the Charter both in case law and in the public sphere. Therefore, the study also demonstrates a great need for legal training on the importance of the Charter and its due application. A number of comments by respondents, presented in a free form addressed specifically the need for such training. The responses may be classified as follows: the need for training on the importance and possibilities of the application of the Charter, and on the relationship between the Charter and other legal acts. In general, the researchers argue that, at the national level, the Charter has not yet become a widely applied means for the protection of fundamental rights. In order to ensure the effective protection of fundamental rights at the national level, it is necessary to increase awareness of the Charter and to provide the comprehensive guidelines regarding its application and interpretation.