Article title Ex Tunc v. Ex Nunc: Precedents’ Effect in Time (European Court of Human Rights Study)
Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 4/2017
Сторінки [76-85]

The article focuses on how the European Court of Human Rights assesses issues of time effect of national judicial decisions of a general impact, and which models of this action uses this Court. It is proposed to distinguish between two main models of such decisions in time — retroactive and non-retroactive. The choice between these models is due mainly attempts of the courts to divert adverse effects caused by changing of a certain steady legal situation (because of reversal of the law by constitutional justice agenda or by changing previously expressed legal position y highest courts). It is found that when assessing the change in the legal position of national courts ECHR mainly pays attention to whether they have managed to ensure the principle of legal certainty. In addition, we state that the Court itself, with rare exceptions, is trying to provide its legal positions only retroactive effect. Study of effect in time of judgments with geneal impact on the materials of ECHR is useful primarily to enrich the experience of national courts. In particular, it must be concluded that the Supreme Court of Ukraine and the Constitutional Court of Ukraine should pay more attention to the means used by the ECHR to soften the shift in its case law. Pointing on the lack of consensus on an issue at hand among the states and leaving some legal issues within the margin of appreciation of the states is a kind of gesture the ECHR gives to get the states know that its case law will evolve. This, in turn, gives the signal to member states that they should be ready to retrospective changes in the practice of the ECHR.

Keywords ex tunc, ex nunc, European Court of Human Rights, the legal position
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