Том 3_Актуальні питання державотворення_КНУ_2016

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indicators can be identified only at one institute in Kiev, but not in the vast majority of laboratories controlling quality of drinking water, experts assume that the primary goal of providing such indicators is lobbying of interests of the institute, but not concern about the safety of drinking water [What Lies Behind the New Standard on Water Quality: Expert Opinion [Electronic resource]. – Access mode: http://www.ses.gov.ua/articles/1/126/chto-stoit- za-novym-standartom-kachestva-vody-mneniya-ekspertov/print.html].

In order to improve legal support in the field of water supply scholars propose the following directions of harmonization of Ukrainian water legislation with EU legislation: creation of State concept of realization of human rights to qualitative and safe drinking water [Ladychenko V. State policy in the sphere of human right to drinking water // Actual issues of reforming the legal system of Ukraine. Annul report. – 2015. – P. 85.]; the necessity to clearly define at legislative level the responsibility of water management companies in the case of supply of drinking water of poor quality to the population [Orlov V. Water supply and sanitation / V. Orlov, Y. Tugay, A. Orlova. – K.: Znannia, 2011. – P. 214.].

Conclusions. According to the candidate countries for EU membership, implementation of the EU water policy is one of the most difficult reform packages in the whole European integration process. At legislative level quality standards for drinking water in Ukraine meet the standards of drinking water quality in the EU, but they are not fulfilled in practice. In addition to amendments to the water legislation, there are a number of tasks that must be completed: implementation of comprehensive measures intended to modernize and upgrade the water supply and sewage network, the introduction of rational water consumption standards for the population, improvement of water resources accounting, improvement of tariff policy, creation of a basis for stabilization of water use and improvement of quality of water intended for human consumption.

Ivan Demtso

Taras Shevchenko National University of Kyiv, Law Faculty 2nd year Master’s student

Extraterritorial jurisdiction in the jurisprudence of the European Court of Human Rights

The present paper concerns interpretation of the term ―jurisdiction‖ as used in Article 1 of the European Convention on Protection of Human Rights and Fundamental Freedoms (the

―Convention‖) and in the jurisprudence of the European Court of Human Rights (the ―Court‖).

The purpose of the paper is to establish when Contracting State is responsible for securing the Convention rights beyond its borders. This question is important in the light of annexation of Crimea by Russian Federation and armed conflict in Eastern Ukraine.

Under Article 1 of the Convention, Contracting State shall secure human rights ―to everyone within their jurisdiction‖. ―Jurisdiction‖ in international public law normally outlines limits within which the state may legitimately exercise its powers. This type of ―substantial‖ jurisdiction is primarily territorial. However, as used Article 1 of the Convention ―jurisdiction‖ means limits of State‘s responsibility for violation of human rights. This ―remedial‖ type of jurisdiction may not coincide with limits of ―substantial‖ jurisdiction [Orakhelashvili A. Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights // European Journal of International Law – 2003. – No. 14 - P. 539-540].

Jurisdiction under Article 1 of the Convention is also primarily territorial. However, there are two models of extraterritorial jurisdiction. The first is ―spatial model‖ when jurisdiction

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arises from the State‘s effective control over the area beyond its borders; under ―personal model‖ jurisdiction arises from the State‘s authority or control over the individual. [Milanovic

M. Al-Skeini and Al-Jedda in Strasbourg Rights // European Journal of International Law – 2012. – Vol. 23. - No. 1 - P. 122].

As regards spatial model, one vivid example is case Loizidou v. Turkey. The applicant, citizen of Republic of Cyprus, applied against Turkey for alleged violation of her right to property located at the territory of self-proclaimed ―Turkish Republic of Northern Cyprus‖ (―TRNC‖), which ultimately was controlled by Turkey. The Court held that the responsibility of the state may arise when, as a consequence of lawful or unlawful military action, it exercises effective control of an area outside its territory. The Court concluded that Turkey exercised control over the Northern Cyprus through ―subordinate administration‖ by means of military and political support.

The same approach was applied in the interstate case Cyprus v. Turkey. The Court explained this approach by desire to avoid ―regrettable vacuum in the system of human rights protection‖. Both Cyprus and Turkey were parties to the Convention, thus residents of Norther Cyprus should not have been deprived of protection with establishment of ―TRNC‖.

The Court was severely criticised for its admissibility decision in Bankovic and Others v. Belgium and 16 Other Contracting States. The Court declared inadmissible application lodged by survivors and relatives of victims of airstrikes in Belgrade during NATO operation in Federative Republic of Yugoslavia. The Court refused to interpret ―jurisdiction‖ according to the principle of ―living instrument‖ arguing that Convention is designed to be applied within its legal space to which Yugoslavia did not belong. In other words, residents of Yugoslavia at that time did not enjoy protection under Convention and thus could not have been deprived of it unlike residents of Northern Cyprus. The Court held that extraterritorial jurisdiction is exceptional and that airspace control do not amount to effective control over the area. The Court rejected the idea that the Convention rights could be ―divided and tailored‖, that meant that the State protected either all Convention rights, or none.

In subsequent decisions, the Court departed from its position in Bankovic. In Ilaşcu and Others v. Moldova and Russia, the Court held that establishment of separatist regime on the territory of the Contracting State does not absolve the State from obligation to secure human rights. However, the scope of such protection would be reduced. The State still has to use available legal and diplomatic means to guarantee the Convention rights. As to Russia, just like Turkey in Loizidou, it was held responsible for acts of Transdniestrian separatist regime, which survived due to its political and military support, and for acts of private individuals who violated Convention rights with ―acquiescence or connivance‖ of Russian authorities.

Finally, in Al-Skeini and Others v. the United Kingdom, the Court departed from Bankovic approach. The applicants were Iraqi citizens who claimed that the United Kingdom violated its procedural obligations under Article 2 of the Convention during military operation in Iraq (it was mandated by the United Nations Security Council). The Court acknowledged that Convention can be applied outside territory of Contracting States (diminishing concept of

―legal space‖). Also, the Court held that Convention rights can be ―divided and tailored‖, and the United Kingdom should have ensured independent investigation of applicants relative‘s deaths, as it exercised ―public powers‖ sufficient to create jurisdictional link.

Even though the Court departed from Bankovic approach it did not acknowledge that decision to be error, rather it tried to ―fit‖ it within Al-Skeini approach. Thus, extraterritorial jurisdiction is still regarded as exaction. The Court made distinction between cases based on

―public powers‖ which NATO states lacked in Bankovic. [Milanovic M. Al-Skeini and Al-

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Jedda in Strasbourg Rights // European Journal of International Law – 2012. – Vol. 23. - No. 1 - P. 127-131].

To apply above principles to the situation of Crimea and Eastern Ukraine some parallels may be drawn. First, Ukraine is not in effective control over Crimea and certain territories in the Eastern Ukraine. Applying Ilaşcu approach Ukraine still have to secure limited scope of human rights by available legal and diplomatic means. Second, Russian Federation claiming

Crimea to be its part and supporting separatist regimes of ―DPR‖ and ―LPR‖ should assume liability for all the acts of these ―subordinate administrations‖, which survive due to its support.

Thirdly, in the light of Bankovic, it is unclear how to treat cases of shelling of controlled by Ukraine towns. In my opinion, shelling is an act done by illegal armed forces supported by Russian Federation that produce effect on territory controlled by Ukraine, thus it is Russia to be imputable for the consequences.

To summarize, (i) the State is responsible for securing Convention rights on the area it effectively controls even indirectly and to the individuals within its authority or control; (ii) scope of right the State has to protect may depend on circumstances; (iii) State must secure limited scope of rights on the territory controlled by separatist regimes; (iv) State may be responsible for illegal acts of private individuals; (v) Convention may be applied beyond its

―legal space‖.

Науковий керівник – д.ю.н., проф. Мірошниченко А..М.

Yuliya Dzhuryak

Taras Shevchenko National University of Kyiv, Law Faculty 2nd year Master’s student

Problematic legal issues of selling state and municipal land plots on auction

Proposed topic is crucial taking into account the importance of implementing transparent system of selling state and communal lands on land auctions. Procedure of selling land plots and rights on them by means of land auctions is not new to Ukrainian legislation, as it was implemented to legislation in 2008. Unfortunately, only at the end of 2012 the procedure of land auctions was provided in the Land Code of Ukraine (―Land Code‖). Though, Land Code contains detailed regulation of this procedure it is still being on the stage of development. Land auction procedure contains drawbacks, as well as excessive regulation, which prevent this system from being effective.

First of all, although chapter XXI of Land Code contains legal norms on land auction procedure, there is no special legislation, which regulates this issue. Supposedly, draft law on

―On land market‖ was meant to regulate this procedure in more details. It was several times considered by Verkhovna Rada of Ukraine, but none of them were successful. Draft law ―On land auctions‖ was not adopted as well, though most provisions of this draft were implemented in Land Code

Although, Land Code regulates land auction procedure, there are disadvantages of this procedure, which can place in question its effectiveness. These drawbacks are discussed in more detail below.

Without any doubts, land auction procedure for selling communal and state land plots is rather expensive and complicated.

Organizer of land auction is supposed to prepare bid, which is land plot. This process involves preparation of land documentation, publication of detailed information on the land plot

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in printed mass media. For quick reference, such announcements cost from 800 to 1000 UAH in average for each. Moreover, they have to be placed not once. Additionally, organizer is supposed to cover payment for performer of land auction. Taking into account above mentioned, it is necessary to underline provision of article 138 of Land Code, which states that if only one person turned up to participate in the land auction the auction should be cancelled. This provision is harmful. In case when the entire procedure of land auction was conducted according to legislation and only one person decided to participate, this shows real demand. Cancelling the auction in this case leads to waste of time and money of the organizer.

Another essential problem is the complexity of land auction procedure, as it provides unnecessary requirements, which cause obstacles for participants. For instance, a person, willing to participate in auction, is supposed to go through procedure of registration twice. First time is not later than three days before auction, second time at the day of registration.

Obviously this is not necessary [Поліщук О. Г. Окремі проблеми правового регулювання набуття земельних ділянок комунальної власності у користування на конкурентних засадах. // О. Г. Поліщук // Порівняльно-аналітичне право. – 2013. – № 3-2. – С. 178-181].

Another issue for discussion is conclusion of agreement on the basis of auction‘s results. For instance, Shulha M.V. thinks that separately land auction has no force. The goal of land auction is in further conclusion of an agreement with winner in accordance to its results [Шульга М. В. Актуальне правовые проблеми земельних отношений в современных условиях. – Х. Фирма «Консум», 1998. – 224 с.].

Hence, according to this approach, which is shared by many scientists, agreement is a result and auction is a means of its achievement.

To the contrary, other scientists, for instance Miroshnychenko A.M., think that the agreement is concluded directly at auction orally without any need to require the conclusion of one more agreement later. Also the requirement to notarize the agreement is criticized.

[Мірошниченко А. М. Укладення договорів на аукціоні: можливість усної форми та відмови від нотаріального посвідчення (зокрема, щодо нерухомості), недійсність, способи захисту прав учасників. / А. М. Мірошниченко, Ю. Ю. Попов // Вісник Вищої ради юстиції. – 2012. – № 1 (9). – С. 154-164].

This thought seems to be reasonable as public announcement is a public offer at the same time determination of winner is an acceptance of this offer. Moreover, in developed foreign countries like Germany and USA additional agreement are not concluded.

Above mentioned shows that land auction procedure is not perfect and needs reformation. It is also necessary to note that positive changes are periodically implemented. For instance, lately land auction procedure was improved, namely now performer for conduction of auction doesn‘t have to obtain a special license. This is clearly an improvement for the land auctions procedure, as former obligation for performer to obtain a license limited ownership right of organizer and caused obstacles for conduction of land auction.

All in all, it can be concluded that land auction procedure is far from perfection and needs to be reformed and improved. This procedure is essential as it is an effective instrument for elimination of corruption and developing of local communities by bringing additional income to local budgets.

Moreover, taking into account analysis of current legislation, which regulates land auction procedure it can be concluded that there is a strong necessity in adoption of new specialized legislation for regulation of this issue. New procedure has to be computerized, effective and clear. This will make it more accessible for participants and eliminate grounds for corruption.

Науковий керівник – д.ю.н., проф. Мірошниченко А.М.

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Valeriya Zayets

Taras Shevchenko Kyiv National University,

LL.M. in Energy Law

University of Arkansas School of Law

LL.M. Candidate in Agricultural and Food Law

International cooperation in reduction of global greenhouse gas emissions

Relevance of the research‘s topic. Addressing climate change is arguably one of the most relevant issues facing humankind today. It requires Ukraine to cooperate with UN Member States, and provide an effective and appropriate international response with a view to accelerating the reduction of global greenhouse gas emissions.

Novelty. The novelty of this abstract stems from the international legal framework analysis of recent developments in reduction of global greenhouse gas emissions.

On December 12, 2015 the participating 195 countries, including Ukraine adopted the Paris Agreement. It sets the goal of mitigation pledges in terms of global annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent with holding the increase in the global average temperature to well below 2 °C above preindustrial levels and pursuing efforts to limit the temperature increase to 1.5 °C.

In accordance with Article 9, paragraph 3, of the Paris Agreement, developed countries intend to continue their existing collective mobilization goal through 2025 in the context of meaningful mitigation actions and transparency on implementation; prior to 2025 the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement shall set a new collective quantified goal from a floor of USD 100 billion per year, taking into account the needs and priorities of developing countries. It is a great opportunity for Ukraine not only in terms of saving the climate but also for improving national renewable energy sector and reducing gas import dependency.

Under the Article 7 of Paris Agreement, parties, including Ukraine, acknowledged that adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems, and should be based on and guided by the best available science and, as appropriate, traditional knowledge, knowledge of indigenous peoples and local knowledge systems, with a view to integrating adaptation into relevant socioeconomic and environmental policies and actions, where appropriate.

According to the report of the United Nations Environment Programme (UNEP), countries should develop fundamental public approach of biofuels as a clean energy source. [UNEP, Towards the sustainable production and use of recourses‘: assessing biofuels // UNEP Report. –

2009. – P. 15]. However, the method of production of biofuels is important in determining how to reduce greenhouse gas emissions. The report listed a wide range of biofuels greenhouse gas savings compared to fossil fuels. This mainly depends on the feedstock and conversion technology, but also on other factors, including methodological assumptions. For ethanol, the highest greenhouse gas savings are recorded for sugar cane (70% to more than 100%), whereas corn can save up to 60% but may also cause 5% more greenhouse gas emissions. [UNEP,

Towards the sustainable production and use of recourses‘: assessing biofuels // UNEP Report. –

2009. – P. 17]. The highest variations are observed for biodiesel from palm oil and soya. High savings of the former depend on high yields, those of the latter on credits of by-products. Negative greenhouse gas emissions savings, i.e. increased emissions, may result in particular when production takes place on converted natural land and the associated mobilization of carbon stocks is accounted for. [UNEP, Towards the sustainable production and use of

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recourses‘: assessing biofuels // UNEP Report. – 2009. – P. 17]. High GHG savings are recorded from biogas derived from manure and ethanol derived from agricultural and forest residues, as well as for biodiesel from wood. [UNEP, Towards the sustainable production and use of recourses‘: assessing biofuels // UNEP Report. – 2009. – P. 17].

A number of biofuels can be produced from biomass, helping to alleviate demand for petroleum products and improve the greenhouse gas emissions profile of the transportation sector. Biomass is defined as living or recently dead organisms and any byproducts of those organisms, plant or animal. [Environmental and Energy Study Institute, Bioenergy (Biofuels and Biomass) description // EESI. – 2016. – available at: http://www.eesi.org/topics/bioenergy- biofuels-biomass/description].

Conclusions and proposals. Since the use of biofuels offers significant prospects for the development of society, economy and overcoming environmental problems, Ukrainian government should consider the development of biofuels energy sources in their policies on energy, environment, land use and agricultural development. Thereby, Ukraine should not only ratify Paris Agreement. It should adopt new socioeconomic and environmental policies to reduce the adverse effects of climate change and to improve its energy efficiency.

Науковий керівник - Profesor Christopher R. Kelley Associate Professor of Law B.A., J.D., LL.M.

Mariia Zakharenko

Taras Shevchenko National University of Kyiv, Law Faculty 2nd year Master’s student

Topical issues of advertising of medicinal products in Ukraine

The legal regulation of advertising of medicinal products is not free from controversies and be considered as quite a problematic one. This situation is caused by the existence of legal gaps and overregulation of this legislative area. In practice, it adds complexity to the application of legislation by the manufacturers of medicinal products and sometimes results in unequal application of the relevant legislative provisions.

The problem of legal regulation of medicinal products advertising has not yet received enough attention in Ukrainian law science. Therefore the legal basis of our research mainly consists of national legislation and court practice, including the Law of Ukraine "On Advertising", the Law of Ukraine "On Medicinal Products", the Order of Ministry of Health of Ukraine "On some issues of prohibition of medicinal products advertising" dated 06.06.2012 No. 422, Directive 2001/83/EU of the European Parliament and of the Council of 06.11.2001 on the Community code relating to medicinal products for human use.

Ukrainian legislation in force related to the advertising of medicinal products is far from being perfect. The non-compliance between the provisions of the two key sources of legal regulation - the Law of Ukraine "On Medicinal Products" and the Law of Ukraine "On Advertising" – is a good example. Thus, the first Law prohibits the advertising of medicinal products, which use and supply are allowed only by prescription, as well as those included in the list of prohibited medicinal products for advertising (p. 4 of Art. 26 of the Law of Ukraine "On Medicinal Products"). However, the second Law (setting similar prohibition) at the same time contains the following exception: "Provision of this article shall not apply to the advertising of medicinal products, medical devices and methods of prevention, diagnosis, treatment and rehabilitation, which is placed in specialized publications, intended for medical

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institutions and doctors, and is distributed at seminars, conferences and symposia on medical topics" (p. 13 of Art. 21 of the Law of Ukraine "On Advertising").

We suggest that the provision containing the aforementioned exception should also be included in the Law ―On Medicinal Products‖ the new edition of which is currently being drafted.

Another issue is the determination of the list of medicinal products banned for advertising. According to p. 4 of Art. 26 of the Law of Ukraine "On Medicinal Products", the list of medicinal products prohibited for advertising is adopted by the central executive body in healthcare and criteria used in determining medicinal products, advertising of which is prohibited, are approved by the central executive body in the area of public health. The Ministry of Healthcare (the aforementioned executive body) has set the criteria used in determining of the medicinal products prohibited for advertising by the Order dated June 6, 2012. According to this Order in order to meet these criteria, the product characteristics shall meet at least one of the following conditions: (i) the medicinal product is available only on prescription. (ii) the medicinal product contains narcotic, psychotropic substances and precursors. (iii) the use of medicinal product can cause addictive syndrome that indicated in the instructions for medical use, except of medicinal products for external (local) application. (iv) the medicinal product is used only for treatment women during pregnancy and lactation. (v) the medicinal product is used only for treatment children under 12 years. (vi) the medicinal product is used to treat: tuberculosis; sexually transmitted diseases; especially dangerous infectious diseases; HIV / AIDS; cancer; chronic insomnia; diabetes; obesity (including medicinal products used for weight loss); impotence (erectile dysfunction).

The analysis of the regulatory impact of MoH Ukraine "On some issues of prohibition of medicinal products advertising" confirms that these criteria correspond to the requirements of Art. 86 and 87 of Directive 2001/83/EU of the European Parliament and of the Council of 06.11.2001 on the Community code relating to medicinal products for human use. However, mentioned act prescribes the following grounds for prohibition of medicinal products advertising:

―1. Member States shall prohibit the advertising to the general public of medicinal products which:

(a)are available on medical prescription only;

(b)contain substances defined as psychotropic or narcotic by international convention, such as the United Nations Conventions of 1961 and 1971.‖.

Provisions (e) of Art. 90 of the mentioned Directive also prohibit advertising of medicinal products directed exclusively or principally at children. Thus, these provisions set that medicinal product advertising can be prohibited on the ground of three above mentioned conditions. Nevertheless, according to the Order of the Ministry of Health there are six conditions for advertising prohibition and only three of them correspond with Directive. The justification of other criteria is unknown and little understood, since neither the explanatory memorandum nor the analysis of the relevant Order provide any clarification in this regard. From all the above it can be concluded that such procedure for determining medicinal products prohibited for advertising does not correspond to the European practice and does not find adequate justification. This suggests that these criteria can create fertile ground for abusing and possible obstacles to the activities of medicinal products producers.

In conclusion, we can say that these problems are caused by the inconsistency of the current legislation. Such inaccuracies in practice create problems for medicinal products manufacturers that often have doubts as to how to correctly apply the law. Therefore, the legislator should pay

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more attention to overcoming conflicts between legal acts and justify the innovation that currently have more negative effects on relationship and does not meet the objectives for which they were taken.

Науковий керівник – к.ю.н., доц. Гревцова Р.Ю.

Oleksii Ivanets

Taras Shevchenko National University of Kyiv, Law Faculty 2nd year Master’s student

Public Private Partnership in Ukraine: general overview

The legal regime for Public Private Partnership (PPP) in Ukraine is set up by a number of legal acts and regulations, mostly concerning concession and joint activity. Overall, more than 20 normative acts have been adopted during 2009-2015. The most general is the law of Ukraine

―On Public Private Partnership‖ (hereinafter - ―the Law‖), which additionally governs relations regarding state property operation and lease.

The Law defines PPP as cooperation between state or local governmental authority and private sector, based on an agreement. However, this definition seems to be descriptive and may not legibly distinguish PPP‘s projects, since simple governmental-private contracts might also meet PPP requirements.

Even though, PPP projects have some characteristics, differentiating them from other forms of relations between state and private subjects. First, a public-private partnership project must be based on long-term contract (from 5 to 50 years). Second, risks between partners and their responsibility, including project aims determination with monitoring and operational activities realization by public and private partner respectively, must be defined clearly. Third, specific form of financing, due private investment primarily, is characteristic of certain relations.

In most cases, national legal regime of investment is applicable for foreign private partners, engaged in PPP in Ukraine. This means equal conditions for both foreign and domestic companies with the absence of additional requirements for foreign investors. A system of state guaranties seems to be simple while duplicating main fundamental rights, and can not be considered as a sufficient support for private partners. It is limited by non-interference of state bodies in activity of private partner, indemnification of loses, caused by decisions of state bodies or state regulation of tariffs, which prevents partner from obtaining his benefit, and application of legislation, had come into force on the day of contract signing.

Taking into account unstable Ukrainian economy and ―B-‖ credit rating according to Standard & Poor's, these measures are not enough to protect private investors‘ interests from

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probable risks [Ukraine | Credit Rating. – 2006 [Electronic resource]. – Mode of access: https://www.standardandpoors.com/en_US/web/guest/ratings/ratings-actions].

Actually, many investors are staying away because of the high country risk. The listed guarantees, thus, provide additional support and opportunity for PPPs‘ projects development. A degree of interaction between private and public sector determines an appropriate PPP model selection. In accordance with current legislation, concession and joint activity are two main forms, prescribed during PPP projects realization.

Before investing in PPP, it is highly important to analyze key risks. According to the Guidelines for Successful Public – Private Partnerships by the European Commission, risks may be born because of improper risk transfer to the party, which is not best able to manage it in the most cost effective manner [Ridolfi, R., Guidelines for Successful Public – Private Partnerships // European Comission. – Brusseles. – 2003. – P.15]. A foreign company must pay attention to appropriate legal regulation of certain relations before choosing sphere for investment.

Another type of PPP is joint activity. According to the law of Ukraine "On foreign investment", foreign investors are able to conclude agreements on joint investment activity, but not having the status of legal entity. Profits are usually divided proportionally to the contributions. The risk here relates to poor legal regulation of withdrawing from the project and investments return. Therefore, it looks desirable to prescript certain procedures in joint activity agreement (JAA) itself.

Lease and management are also prescribed as elements of PPP. The lease of integral property complex means the lease of an economic object including accomplished production cycle with the land plot. This agreement is similar to concession. Management is a new legal institution, which covers property transfer for a specific period, while the manager is obliged to manage the property in the interests of the management settler. Major weaknesses of these two types include problems of state and municipal ownership of land plots and an unfinished administrative reform.

A key problem concerns financial risks and the involved funding sources, which additionally connects with long term of the agreement. Therefore, it might be difficult to predict circumstances that may occur in 5-50 years, especially taking into account unstable political and economic situation in Ukraine. In addition, military actions in eastern Ukraine cause a big drawback to business climate. Fortunately, a new cease-fire in Ukraine inspires little confidence now. Rising economic levels and closer international partnership encourage greater investment nowadays. Membership in the WTO will also help to raise Ukraine‘s gross domestic product and provides opportunities for profitable investment.

Lack of real responsibility of public partners and long confirmation process are more common than many like to admit. Such risks can be expected in countries with comparatively little experience in PPP projects. However, Ukraine has some developments in this sphere, especially after holding of the UEFA football championship in 2012. Other successful projects, which can confirm the execution of state obligations, are the Southern Trans - European Highway Construction, Highway Construction Kyiv-Kharkiv-Dovzhansk, LNG-TERMINAL, Air Express Ukraine, Olympic Hope 2022 and others.

Considering the above-mentioned, there is no only one correct approach to PPP for Ukraine. Different models may be used, analyzed and estimated thoroughly. Development of transport connection, road infrastructure, system of modern waste recycling, informational network and ports development are the most attractive spheres for investors nowadays, especially because of closer east-west partnership of Ukraine.

Науковий керівник – к.ю.н., доц. Отраднова О.О

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Катерина Киливник

Київський національний університет імені Тараса Шевченка, юридичний факультет студентка 2 курсу ОР «Магістр»

The basic concepts of the European Court of Human Rights practice concerning Article 10 of the Convention

The issue of the freedom of expression is quite controversial and problematic. The cause of such situation is legal gaps of this legislative area without adequate practical implementation. In practice, it has result not only in unequal application of the legislation, but also leads to limitations in activity of media, who become unable to use controversial prescriptions. One can argue that freedom of expression deserve a list of reasons why this right is an important human right.

Article 10 of the Convention guarantees one of the fundamental principles of democratic society: «Freedom of expression, guaranteed by Article 10, § 1, is one of the essential foundations of a democratic society and one of the basic conditions for its progress and self – fulfillment of each individual. Subject to paragraph 2 of freedom of expression applies not only to "information" orthose "ideas" that are favorably received or regarded as inoffensive or insignificant, but also those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which «democratic society» impossible. The decision in the case ―Hendisayd against the United Kingdom‖ (Handyside v. The United Kingdomon 7 December 1976, Series А, № 24, item 49) [Handyside v.the United Kingdom on 7 December 1976, Series А, № 24, item 49]

The media are under the special protection. These principles are especially important when it concerns the press. Although the press must not overstep the bounds set, interalia, to "protect the reputation of others", its duty is to impart in formation and idea sonpolitical issues as well as in other are as of public interest. Not only the media have the task imparting such information and ideas, but the public has a right receive them. The decision in the case "Sunday Times against the United Kingdom" (Sunday Times v. TheUnitedKingdom) (№ 1), p. 65 [Sunday Times v. The United Kingdom, № 1, p. 65].

It is not only the task of the press – to disseminate such information and ideas –society is also entitled to receive them. Otherwise, or would be able to press play this vital role "guard dog of democracy. The decision in the case "Torґeyr Torґeyr son against Iceland» (Thorgeir Thorgeir son v. Iceland) on 25 June 1992, application number 13778/88, p. 63.

Together with the information notification, press also has the obligation not to deform the information and not to distort it. The Court notes that Article 10 of the Convention does not guarantee completely unlimited freedom of expression, even for media coverage of issues causing legitimate concern in society. Under paragraph 2Article 10 implementation of this freedom creates "duties and responsibilities relating also to the press. [...] Due to the fact that the exercise of freedom of expression is associated with the "duties and responsibilities", guarantees provided by Article 10 to reporters for coverage of issues that cause general interest, accompanied by the caveat that journalists act in good faith and will transmit accurate and reliable information accordance with the ethics of journalism. The decision in the case ―Selistö against Finland‖ (Selistö v. Finland on November 16, 2004, application number 56767/00, p.

54.

Restrictions on freedom of expression should be subject of thorough analysis and have a compelling justification. The Court recals that according to paragraph 2 of Article 10 the sphere

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