Проблема эффективности исполнения позитивных обязательств в условиях утраты контроля [Articol]

Abstract

The article conceptualizes positive obligations of states under Article 1 of the European Convention on Human Rights (ECHR) as a mechanism for substituting remedies to protect human rights in situations of loss of de facto control over territory (Transnistria, Cyprus, Abkhazia, South Ossetia, eastern Ukraine). The author argues that such obligations require the creation of effective judicial, administrative, economic, political, and diplomatic mechanisms on controlled territory to compensate for the legal vacuum. Four criteria for the effectiveness of these obligations are identified: awareness of violations, reasonableness and accessibility of measures, effectiveness of remedies, and elimination of systemic barriers. Through analysis of ECtHR precedents (Ilaşcu v. Moldova and Russia, Catan v. Moldova and Russia, Mozer v. Moldova and Russia), it is demonstrated how these criteria allow for assessing state responsibility and enhancing victim protection. The theoretical foundation relies on the due diligence concept, and the practical significance lies in providing courts and states with standards for implementing Article 1 ECHR. The article offers recommendations for national authorities, lawyers, and NGOs on creating alternative protection mechanisms in conditions of loss of control.