Том 3_Актуальні питання державотворення_КНУ_2016

Англомовна секція

to limit the scope of political speech or debate on issues of general interest is very small. The decision in the case ―Syurek against Turkey― (Sürek v. Turkey, №. 1 [GC], № 26682/95, p. 61) [Sürek v. Turkey, №. 1 [GC], №. 26682/95, p. 61].

Journalistic freedom also stipulates the use of statements somewhat exaggerated or even provocative. The decision in the case "Prager and Oberschlick against Austria‖ (Prager and Oberschlick v. Austria) (№. 1) on 26 April 1995, Series A, number 313, p. 38.

ECHR interpretation of the concept of "views": Internal" idea of a person, namely non imposition to individual any way of thinking by the state; information and ideas of public interest (Judgment "Informations verein Lentia" and others against Austria‖ (Informations verein Lentia and others v. Austria) from November 24, 1993, Series A, number 276, application № № 13914/88, 15041/89, 15717/89, 15779/89 and 17207/90) [Informations verein Lentia and others v. Austria from November 24, 1993, Series A, number 276, application № №

13914/88, 15041/89, 15717/89, 15779/89 and 17207/90.]; participation in discussions on issues of common interest (judgment ―Bladet Tromsø and Stensaas v Norway‖ (Bladet Tromsø and Stensaas v. Norway on May 20,1999, application № 21980/93), including publication about the police actions, impartiality of courts, public policy, in particular the healthcare and housing, as well as critical remarks against politicians (decision for Linґensa (Lingens v.Austria) on 8 July 1986, Series A, №. 103; ―Ukrainian Media Group‖ v Ukraine‖ (Ukrainian Media Group v. Ukraine) from March 29, 2005, application № 72713/01; artworks and performances (―Otto Preminger Instituteagainst Austria‖ (Otto-Preminger-Institut v. Austria) of 20 September1994, Series A number of 295-A, application № 13470/87; information of a commercial nature (―Markt Intern VerlagGmbH and Klaus Beermann v Germany‖ (Markt Intern VerlagGmbH and Klaus Beermann v. Germany) on 20 November 1989, A series number 165, application № 10572/83), including advertising (Judgment ―Groppera Radio AG‖ and others v Switzerland‖

(Groppera Radio AG and Others v. Switzerland) 28 March 1990, Series A, number 173, application № 10890/84) et al.; shocking views and ideas.

Means of expression: oral statements (―Kyprianou v Cyprus‖ (Kyprianou v.Cyprus) [GC] of 15 December 2005, application № 73797/01); books (―Landon, Ochakovski-Laurent and Julie against France‖(Landon, Otchakovsky-Laurens and July v. France) [GC] October 22,2007, №№ 21279/02 and 36448/02); articles in the media (―Ukrainian Media Group‖ against Ukraine‖ (UkrainianMedia Group v. Ukraine) on March 29, 2005, application number 72713/01;―Kumpene and Mather against Romania‖ (Cumpana and Mazare v.Romania) on June 10, 2003, application № 33348/96); ad images (such as photos), graphics; videos and movies, TV shows (―Yyersild of Denmark against‖ (Yyersild c .Danemark) on 23 September 1994, Series A, № 298 № 15890/89); behavior, expressing ideas (wearing) and others.

In the next case, the applicant tore ribbon from a wreath laid by President of Ukraine at the monument to famous Ukrainian poet on the Day of Ukraine's independence, and many people witnessed this act. Also deserves attention and that the applicant belonged to opposition political "Batkivshchyna" party, whose leader, Mrs Tymoshenko, while serving sentence of imprisonment.

In view of the behavior of the applicant and its context, the Court agrees with that, that her act she wanted to spread among people certain ideas about President. Therefore, this act can be considered a form of expression of political views. Accordingly, the Court finds that the application to the applicant for this act as a penalty ten days of administrative arrest constituted interference in her right to freedom of expression. The decision in the case "against Ukraine Express» (Shvydka v. Ukraine) from October 30, 2014, application number 17888/12.

250

Англомовна секція

In conclusion we can say that these problems are caused by the inconsistency of the current legislation, big amount of value judgments. Such inaccuracies in practice are very dangerous for the citizens who do not know how to apply the law. Therefore, legislator should pay 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. ас. Москаленко К.В.

Artem Kobrin

University of Tartu, 1st yearMaster's student

Discrimination of introverts and extroverts in the context of right to education

"People are equal" is what all civilized laws say around the world meaning people should be treated similarly [Paul de Vries, Equal opportunity, Blackwell Reference, accessible at http://goo.gl/SbS1fe]. This has not always worked since all people are different. Some people are strong and others are weak. People need different treatment because of their nature, but sometimes it leads to discrimination. In a modern society, supremacy of human rights reigns and requires all people to be treated equally. Otherwise, a wrongdoer bears liability for his discrimination actions against someone. More or less all of people are protected against all titles of discrimination, but there is no answer about legal protection of introverts and extroverts, especially in education when they are young and weak. Accordingly, the main idea of this paper is to provide an observation how law can protect introverts and extroverts in education. The paper has four parts. The first part shows peculiarities of introverts and extroverts. The second part emphasizes the need to treat introverts and extroverts differently. The third part points out that schools and universities are most stressful places for introverts and extroverts. The final part provides a legal analysis of protection of introverts and extroverts in the light of the right to education.

Introverts and extroverts have different psychological and biological peculiarities. This is comparable with the differences between women and men, heterosexuals and homosexuals, and so on. For example, only women can be pregnant while men naturally cannot be that. The situation with introverts and extroverts is the same. When introverts are forced to express themselves, they do this fighting with themselves. When extroverts are sitting somewhere alone, it is boring for them. The same situations with an extrovert in the first one and an introvert in the second one have an opposite effect. Extroverts are not afraid of expressing their thoughts and do it naturally. At the same time an introvert sitting alone feels comfortable. Thus, introverts and extroverts have their own characteristics.

Introverts and extroverts should be treated differently as they have these peculiarities. An example is when a woman is pregnant she has additional holidays, especially during the last months of the pregnancy. The difference here is that introverts and extroverts are not singled out in society and people always treat them similarly. A good example is a situation with teachers' pressure on introverts by announcing that "One-third of your grade will be based on classroom participation" [Otto Kroeger and Janet M. Thuesen, Type Talk: The 16 Personality Types that Determine How We Live, Love and Work. New York: Dell Publishing, 1989]. This leads to discrimination as introverts are not provided the same comfortable conditions as extroverts. Sometimes there is a likelihood of discrimination of extroverts, especially when

251

Англомовна секція

there are many written tasks and extraverts cannot express themselves orally that they usually prefer. Thus, it is discrimination of introverts and extroverts, if they are treated similarly.

Introverts and extroverts are vulnerable mainly at schools and universities. As they are young and not seasoned, that is why they cannot resist significantly being an introvert or extravert. This is with what they have to live with. After finishing schools and universities they can easily use their psychological and biological peculiarities. For example, there are some differences between such legal professions as barristers and solicitors. One of them is that a barrister represents a client in courts which is preferably extravert's job, whilst a solicitor has to deal with written legal matters which is mostly preferably an introvert's job. Thus, at an older age they are free to choose, but when studying there is no option and they are forced to feel this pressure.

Law does not protect introverts and extroverts, but it should at least during the educational period. The example with pregnancy shows that a woman has a right for the pregnancy leave. This situation has a legal framework allowing her to do it. The situation with introverts and extroverts is opposite as there is no national legislation protecting them. Moreover, protection is not applicable at the international level as Protocol I to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - ECHR) in article 2 "Right to education" has no relevant case law before the European Court of Human Rights and has a limited application [Guide to article 2 of Protocol No. 1, Council of Europe/European Court of Human Rights, 2015, pp. 1-11]. This means that even if there is discrimination, it is still not protected as it is out of scope of article 2 of the Protocol I to ECHR in conjunction with article 14 of ECHR. International Covenant on Economic, Social and Cultural Rights in article 13 recognizing "the right of everyone to education" might be interpreted more broadly and might guarantee legal protection of introverts and extroverts since "education shall enable all persons to participate effectively in a free society" (art. 13(1)), but the problem with regard to legal protection is connected with the fact that there is the absence of relevant case law and recognition of any rights of introverts and extroverts. The existence of the discrimination of introverts and extroverts and the vulnerability at schools and universities lead to a need to revise the existing system of law in order to provide equal opportunities to introverts and extroverts to realize their right to education comfortably.

To sum up, introverts and extroverts are different people and each group has to be treated differently in order to provide them the opportunity to satisfy their needs in the context of right to education when they are vulnerable and not prepared for life. Accordingly, there is a need to set the legal framework for the protection of introverts and extroverts.

Tetiana Kovalenko

Taras Shevchenko National University of Kyiv,

Faculty of Law

Doctor of Law, Associate Professor of the Department

of Land and Agricultural Law

Legal defects of Ukrainian land legislation

Normative legal acts of land legislation are legal documents that: a) are accepted by the competent public authorities or other bodies, authorized by the state, b) have formally defined and obligatory character, c) contain new, modify or cancel existing land law norms and d) are guaranteed by the state. Based on these features of normative legal acts of land legislation, legal defects of normative legal acts can be classified depending on the place of their appearance: a)

252

Англомовна секція

legal defects of the content of normative legal act and b) legal defects of the form of normative legal act.

Legal defects of the content of normative legal act emerge in the lack, defectiveness of legal prescriptions, which are fixed in articles and paragraphs of land statutes and other normative legal acts, and contain land legal norms. Such legal defects of content of legal prescriptions can be manifested as follows: a) the inconsistency of requirements of normative legal acts, b) the inaccuracy of prescriptions of normative legal acts, c) the uncertainty of prescriptions of normative legal acts, d) the incompleteness of the objectification of land law norms in normative legal acts and other sources of Ukrainian land law.

In legal theory scientists note, that during the preparation, adoption and publication of legal normative act legal material has to be grouped according to the legislative technique, so that the act has become compact and its provisions will be easily perceived. An important condition for the perception of the normative material, which is placed in the text of normative legal act, is meaningful correspondence, consistency of its provisions, when: a) the content is determined by some other prescriptions, b) all prescriptions are logically interrelated and interdependent, c) there is development of previous legal prescriptions in the following. Violation of this conditions leads to loss of continuity and logical interdependence of legal prescriptions. Text of normative legal act becomes difficult for understanding and use. Such situation violets the constitutional right of everyone to know his rights and duties, as set out in Article 57 of the Constitution of Ukraine.

Legal defects of the content of normative legal acts of land legislation may include inaccuracy of their prescriptions. The accuracy of prescriptions, which are expressed in the sources of Ukrainian land law, is determined by strict correspondence between the content of legal norm and its verbal fixation of in the text of normative legal act. Inaccurate, defective fixation of land legal norms in the text of normative legal act leads to distortion of the model of behavior, embodied in such legal norm. Land relations acquire other quality features that are different from those, on the achievement of which land law norm was set. This leads to complication of legal regulation in land sphere and to violation of land rights of different subjects.

Legal defects of the content of normative legal act of land legislation are in uncertainty, vagueness of its text. Land law consists of legal norms, which found theirs outward expression in legal prescriptions and are fixed in texts of normative legal acts with the help of language means – words, phrases, sentences. The uncertainty, vagueness of the text of normative legal act as its meaningful defect can appear in syntactic, semantic or grammatical ambiguity of language expressions, used in land legislation of Ukraine.

Syntax uncertainty may occur when there are defects in the grammatical construction of sentences and phrases in the text of normative legal act, when rules and scheme of creation of phrases, sentences and texts as verbal models of certain land relations are ignored. Semantic uncertainty of the text of normative legal act of land legislation will occur when wrong, incorrect lexical units are used for the fixation of the content of land legal norms. Grammatical uncertainty, as legal defect of the content of normative legal act, appears in violation of word formation rules, as well as in violation of the rules of association in meaningful phrases and sentences words, that in this situation acquire forms, depending on their functions in sentence.

The second group of legal defects of sources of Ukrainian land law, as an external expression of land legal norms, are defects of the form of normative legal acts of land legislation. They may be manifested in: a) wrong, incorrect choice of the type or of the form of

253

Англомовна секція

normative legal act to regulate certain land relations, b) differences in the content and in the title of normative legal act of land legislation.

Incorrect, wrong choice of the type of normative legal act, directed at regulation of certain land relations, leads to contradictions between the real needs of society in the legal act of certain type and therefore legal force, and existing normative legal act and its actual legal force. In particular, taking into account important social, economic, political and environmental importance of land, land plots in the state and Ukrainian society, land reform in Ukraine would have to be regulated by relevant statute as an act of the highest legal force. However, more than twenty years land reform in Ukraine is carried out in accordance with two resolutions of the Parliament (Verkhovna Rada of Ukraine) – ―On Land Reform‖ of December 18, 1990 and ―On the Acceleration of Land Reform and Land Privatization‖ of March 13, 1992, which contain, respectively, eight and ten paragraphs.

Thus, legal defects of normative legal acts as sources of land law of Ukraine should be considered as drawbacks of both the content and the form of normative legal acts of land legislation. Such defects adversely affect the legal regulation of land relations and reduce the effectiveness of legal norms, principles of land law, methods of state impact on the behavior of land relations participants. Preventing the emergence of legal defects of normative legal acts of land legislation on the legislative stage, as well as early detection and minimization of their negative impact in the land sphere are the guarantees of stability and efficient functioning of the mechanism of legal regulation of land relations, of land rights implementation and protection of land as the main national wealth of Ukraine.

Viktor Komziuk

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

Legal protection of journalistic sources

Ukrainian legislation provides legal measures for the protection of journalistic sources, however they are not explicit. Whereas general legal rules are established, specific definitions and procedures are missing.

The national legislation defines the right of the journalists not to disclose their sources of information as possibility to keep in secret (a) data about the source of information; or (b) information that allows detecting the source of information. Being prescribed by specific legislation on journalists‘ rights, it is also protected by the Constitution of Ukraine and procedural law.

However, the term ―source of information‖ is not defined in national legislation. Legal system operates in the sphere of protection of journalistic sources by defining secrets protected by law, confidential information etc.

According to national legislation, the disclosure of confidential sources may be possible solely at the request of the court as it is provided in the laws of Ukraine ―On Information‖ and ―On the Printed Media (Press) in Ukraine‖. However, we can see the lack of legal safeguards for the protection of journalists‘ rights in national laws governing disclosure proceedings.

The helicopter view on the Unified state register of judgments shows there are only few cases on disclosure of journalistic sources. Provisions of Criminal Procedural Code of Ukraine on protection of journalistic sources were adopted in 2012 (with the new Criminal Procedural Code), so there is still no established court practice.

254

Англомовна секція

Legal protection for confidentiality of the source is mainly established in the Criminal Procedure Code of Ukraine by defining that journalists shall not be interrogated as witnesses about information containing confidential information of a professional nature provided under condition of nondisclosure of authorship or source of information. Furthermore, under

Criminal Procedure Code such information is recognised as ―secret‖ and ―protected by law‖: secret information protected by law and contained in objects and documents includes [inter alia] information in possession of a mass media or a journalist and which was provided to them on condition that its origin or source would not be disclosed.

With regard to civil proceedings, Article 51 Part 1 paragraph 2 of the Civil Procedure Code of Ukraine prohibits to examine as witnesses individuals who are obliged by law to keep in secret information, entrusted them in connection with their official or professional status, regarding this information. Article 65 Part 2 paragraph 5 of the Code of Administrative Procedure of Ukraine protects journalists from examination in the same manner.

The case law in Ukraine doesn‘t show any trends in the sphere of protection of journalistic sources. There is only several court decisions which assess necessity of disclose of journalistic sources in the State registry of court decisions. Such situation may be caused (mostly) by several reasons: a) investigators are very cautious with journalists and try to avoid court proceedings; b) journalists themselves doesn‘t use privilege of confidentiality of source often; c) sources doesn‘t know about possibility of legal protection, so information is not transferred under condition of secrecy of source; d) parties settle trial before/without court decision by, for example, disclosing part of information, which was intended to be secret, but doesn‘t identify the source.

In the light of the national legislation, the privilege of non-disclosure of journalistic sources consists of four elements: (a) possibility to keep in secret a source of information and data, which could help to identify the source; (b) prohibition of interrogation of a journalist as a witness in criminal proceedings about confidential information provided under condition of non-disclosure of authorship or source of this information; (c) broadcasting organisations shall keep in secret information about persons who provided them with information or other materials, if the confidentiality of a person was the condition for such transmission of information; d) investigators shall not demand disclosure of journalistic sources during covert investigation. For example, in case No. 761/27809/14-ц journalist agreed (by own will) to provide all hard copies of documents received under condition of confidentiality of source, but refused to disclose the source. However, disclosure of source and this information was only needed to prove journalistic investigation was based on real documents and newspaper conducted appropriate check of information. Necessity of disclosure of source was eliminated when provided documents were examined by court, [Shevchenkivskyi district court of Kyiv, 'Court decision' (Unified state registry of court decisions, 9 December 2014) http://www.reyestr.court.gov.ua/Review/42173763 accessed 22 April 2016].

One of existing court decisions is in case No. 757/9271/14-к shows that investigator successfully proved, that information contained in objects and documents may be used as evidence, and there are no other ways to prove circumstances that are to be proved by this object or document. However, court didn‘t assess if necessity of disclosure prevails right to non-disclosure, investigator failed to prove legitimate aim of disclosure and absence of reasonable alternative measures/evidence [Pecherskyi district court of Kyiv, 'Court ruling' (Unified state registry of court decisions, 18 April 2014) http://www.reyestr.court.gov.ua/Review/54243961 accessed 22 April 2016].

255

Англомовна секція

Disclosure of journalistic sources is often assessed by courts in cases about defamation/honour and dignity offence. For instance, in case No. 314/3755/15-ц court established in interim ruling that audio recording (parties agreed on authenticity) was made with infringement of right to private life. Court ordered disclosure of source, but journalist refused to do so. Court proceedings continue, there is no final decision yet [Vilniansk district court of Zaporizhzhia region, 'Court ruling' (Unified state registry of court decisions, 10 December 2015) http://www.reyestr.court.gov.ua/ Review/54209178 accessed 22 April 2016].

Finally, we note with regret that self-regulation does not play a significant role in protection of journalists‘ rights in Ukraine yet. Independent journalism emerged mostly in a few last years and high moral and professional standards are rare. Existing National Union of Journalists of Ukraine appears to be a soviet style association of state owned media. Founded in 1992, it copies a soviet predecessor. According to the Charter of this Union it has general functions of representation of journalists and is not a self-regulatory body.

Науковий керівник – к.ю.н., доц. Заярний О. А.

Vitalii Kuznetsov

Doctor of law, Professor, Chief of Chair of humanitarian and common law sciences of Institute of Department of State Guard of Ukraine of Taras Shevchenko Kyiv National University

Olga Spiricheva senior teacher of Chair of humanitarian and common law sciences of Institute of Department of State Guard of Ukraine of Taras Shevchenko Kyiv National University

Qualification of Criminal Violation: Regulatory and Law enforcement Issues

Efficient investigation of criminal violations can‘t be available without their proper criminal legal qualification. Furthermore, contemporary law enforcement requires setting out the main fixed principles and rules of criminal violation qualification.

The first and foremost provision, in our opinion, needs a legislative implementation: it stipulates coordination of both the Criminal Code of Practice and the Criminal Code of Ukraine. Above all, it refers to application of new terms in the Criminal Code of Practice, i.e.

―criminal violation‖, ―criminal offence‖ etc. Thus, first of all, we should, settle a standard definition for these concepts and define types of criminal violations. Unfortunately, the presentday law enforcers and judges began to exploit a new terminology without amendments to the

Criminal Code of Ukraine like ―qualification of criminal violation‖, ―significant number of criminal violations with suspects‘ announcement‖, ―person committed a criminal violation‖, ―criminal violation with barred proceedings‖, ―a sentenced person‖. Although as generally known, there are no applicable standard definitions approved. For the justice‘s sake, we should mention that there are a number of draft amendments to the Criminal Code of Ukraine on institution of criminal offences that could settle the dispute. A particular interest is provoked by the draft law submitted by the people‘s deputies of Ukraine on ―Draft Law on alteration to certain legislative acts of Ukraine on institution of criminal offences‖ (registered № 2897, 19.05.2015) that specify both the abovementioned concepts (―criminal violation‖, ―criminal offence‖) and ―criminal legal qualification‖ (Part 1 Article 12-1). Recognizing the full worth of

256

Англомовна секція

deputies‘ initiative in general we should take a notice of controversy of the concept ―criminal legal qualification‖. As it has been noted, the Criminal Code of Practice mainly applies the term ―legal qualification of criminal violation‖, however, the criminal law theory exploits a great deal of concept varieties of ―qualification of crimes‖ (―criminal legal qualification‖, ―qualification of criminal violation‖). So the matter is not only in the content of the abovementioned concepts but in terminology as well. For instance, P. Andrushko assumes that there are two terms for ―qualification of criminal violations‖ (―qualification of crimes‖): criminal-commitment and criminal legal ones. In our opinion, on the one hand, a general concept ―qualification of crimes‖ should be applied in current law enforcement (unless appropriate amendments to the Criminal Code of Ukraine on terminology adjustment), on the other hand, granted for lack of a common view on the concept content we consider these suggestions to be unreasonable.

Another significant reason for high quality investigation of criminal violations is a legislative consolidation of draft qualification of criminal violation principles and rules in the model Chapter I-I ―Principles of the Criminal Code of Ukraine‖. This standpoint isn‘t new for criminal law theory. On the whole, perspective realization of the provisions in the Criminal Code of Ukraine should be sustained. Though, such novels are suggested to be comprehensive and sufficient for effective application of criminal liability law. Thus, two concepts of implementation of these provisions can be suggested. The first one (by V. Navrotskii) lies in setting up a particular part of act that would stipulate all possible rules and principles of qualification of crimes. The second one (by M. Khavroniuk) states some amendments to certain sections of the General Part of the Criminal Code of Ukraine. Accomplishment of the first conception will allow a comprehensive approaching to the problem and considering all the rules and principles of qualification of crimes. Far from objecting another approach we should state that as for the current draft law these suggestions concern only Chapter 3 ―Criminal violation, its types and stages‖. So far the authors of the draft law leave behind the problems of stages of criminal violation (offences) qualification, complicity in criminal violation (offences) etc. In our opinion these issues should be settled by legislature, since there are many alternates of such acts qualification judicial opinion. So a qualification of completed attempt may be accomplished according to Part 2 Article 15 ( or Article 15) and to Article of the General Part of the Criminal Code of Ukraine; while an intended group crime can be qualified under Part 2 Article 28 (or without it) and Article of the General Part of the Criminal Code of Ukraine. The legislature doesn‘t cover such controversial situations. On the one hand, there are ascertained scholarly views on such acts qualification (according to V. Navrotskii), on the other, government representatives should be liable within the limits of their competence according to the legislature (under Article 6 of the Constitution of Ukraine). Thus, it‘s completely reasonable to suggest (after Y. Lashchuk) that government representatives should apply the rules and principles of qualification of crimes stipulated by the Criminal Code of Ukraine (i.e. Article 29 of the Criminal Code of Ukraine).

To sum up the abovementioned we can assume that:

1)within the contemporary application of norms of criminal legislation, legal terms in criminal proceeding should be subordinated to substantive law terminology; while the government representatives are suggested to apply the rules and principles of qualification of crimes stipulated by the Criminal Code of Ukraine;

2)within the prospective application of criminal legislation norms the conceptual set of the

Criminal Code of Practice and the Criminal Code of Ukraine have to be adjusted; however, it‘s not worth defining the concept ―legal qualification of criminal violation‖; but principles and

257

Англомовна секція

rules of qualification of crimes (criminal violations) should have a comprehensive and full adjustment to the General Part of the Criminal Code of Ukraine.

Denys Lazariev

Taras Shevchenko National University of Kyiv

II year student of Joint Master Degree

The functions of Ukrainian State Film Agency and British Board of Film Classification

The Ukrainian State Film Agency (hereinafter referred to as USFA) is a special body established in 2014 by the Decree of the Cabinet of Ministers of Ukraine ―On aprroval of Provision of Ukrainian State Film Agency‖ dated 17 July 2014 № 277, playing important role in providing permission for films demonstration on the territory of Ukraine. Thus, its decisions directly affect realisation of citizen‘s right to freedom of expression. Therefore, it is important to compare functions of USFA and of the similar body in one of the European Union memberstates in order to analyse the European experience regarding execution of the compared functions. The United Kingdom and British Board of Film Classification (hereinafter referred to as BBFC) is an independent, non-profit body, realising functions of determining whether or not video works are suitable for classification certificates to be issued in respect of them, to issue such certificates or to refuse to issue the certificate [Who we are // British Board of Film

Classification [Електронний ресурс]. – Режим доступу: http://www.bbfc.co.uk/about- bbfc/who-we-are]. In this respect we could take into account the European experience of the filed for providing proposals for future rearrangement of executive bodies system of Ukraine.

The USFA is central state body of executive power. The Cabinet of Ministers of Ukraine through the Ministry of Culture of Ukraine is coordinating its activity. [Provision of Ukrainian State Film Agency approved by Decree of Cabinet of Ministers of Ukraine dated 17 July 2014

№ 277 [Електронний ресурс]. – Режим доступу: http://zakon0.rada.gov.ua/laws/show/277- 2014-%D0%BF] The USFA carries out various functions: it is entitled to conduct state registration of films and to grant them state certificate, or to refuse to register the film. In case of positive answer, the USFA attributes certain index to the film. USFA refuses registering the film if, for example, it contains discriminative statements, materials aimed at changing the state borders of Ukraine etc. The regarded permissions are provided according to classification by main groups: films which do not have restrictions of audience (‗children audience‘, ‗general audience‘, ‗12‘) and indexes for films with limited audience (‗16‘, ‗18). [Provision on state certificate for distribution and demonstration of films approved by Decree of Cabinet of Ministers of Ukraine dated 17 August 1998 р. № 1315 [Електронний ресурс]. – Режим доступу: http://zakon5.rada.gov.ua/laws/show/1315-98-%D0%BF] Also USFA executes film production programs prescribed by Government, keeps the State register of movies as well the State register of producers, distributors and demonstrators of movies, composes protocols of administrative offences in the sphere of cinematography, organization of film festivals and other events to promote the national film industry, cooperates with domestic and foreign film archives etc. [Provision of Ukrainian State Film Agency approved by Decree of Cabinet of

Ministers of Ukraine dated 17 July 2014 № 277 [Електронний ресурс]. – Режим доступу: http://zakon0.rada.gov.ua/laws/show/277-2014-%D0%BF] In general, it carries out 28 different functions as prescribed by paragraph 4 of Provision on Ukrainian State Film Agency and this list is not exhaustive.

As it was mentioned above, British Board for Film Classification is and independent body. It was specially designated by the Secretary of the State to make arrangements for ‗determining

258

Англомовна секція

whether or not video works are suitable for classification certificates to be issued in respect of them, to issue such certificates or to refuse to issue the certificate‘ . Moreover, under Section 7 of Video Recordings Act 1984 the classification certificate shall provide with the information regarding suitability for viewing and supply, e.g. ‗whether video work is suitable for general viewing and unrestricted supply‘ or the audience and supply should be limited. [Video Recordings Act 1984 // The National Archives [Електронний ресурс]. – Режим доступу: http://www.legislation.gov.uk/ukpga/1984/39/contents] However, within the sphere of film classification that are to be displayed in the cinemas, ‗BBFC decisions can be overruled by the local authorities‘, whereas in the sphere of video recordings it has exclusive competence. [British Board of Film Classification history [Електронний ресурс]. – Режим доступу: http://www.bbfc.co.uk/education-resources/student-guide/bbfc-history.]

In this respect, several conclusions could be made:

1. The provided comparison of the UFCA and BBFC functions showed significant discrepancies in state regulation of activities in the sphere of cinematography. The function of providing certificates and attributing certain indexes limiting or not audience of the films to be demonstrated on the territory of the respective State is exercised by both compared bodies but having special features. Among them we could mention: the sphere of application, the specifics of functions applied, the subjects involved into the procedure of state granting permissions etc. BBFC does not carry out any organizational function, the scope of its powers is limited only to granting certain classification certificates to film (in fact, carrying out function of registration) whereas USFA cooperates with film archives, organizes events etc. Therefore, BBFC was created to carry out one specific function, whereas USFA conducts various types of activities as State body.

Another important conclusion relartes to material aspect of their functions realization, therefore it is necessary to underline that BBFC is an independent body, which does not require any state expenses for its functioning as its income derived ‗from the fees it charges for its services, calculated by measuring the running time of films, DVDs/videos and other works submitted for classification‘. [Who we are // British Board of Film Classification [Електронний ресурс]. – Режим доступу: http://www.bbfc.co.uk/about-bbfc/who-we-are] At the same time, USFA functioning requires state funding according to State Budged of Ukraine.

Науковий керівник – к.ю.н, доц. Пухтецька А.А.

Катерина Литовка

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

Positive obligations of the state in respect to the legal protection of the right to life

Аrticle 2 of the European Convention on Human Rights (hereinafter – the Convention) states: «Everyone‘s right to life shall be protected by law». Although this prescription is obvious from the first sight, one should go deeper to interpret this provision in order to provide the complete protection of the right to life. Such interpretation is essential due to the nature of the right to life as a supreme indispensable substantive right that cannot be useful unless there will not be a clear complex of obligations of states to ensure the mentioned right. Below it will be discussed aspects of positive obligations of the state from the standpoint of protection of the right to life.

259