1. Introduction
Some ten years ago, in 2004, as a practicing lawyer I applied to the Court requesting an interim measure under Rule 39 of the Rules of the Court in an extradition case. The measure was granted – and that was the very first application of Rule 39 in Ukraine. It struck both prosecuting authorities and judges, who could hardly imagine that the European Court of Human Rights (ECtHR), still considered at that time to be more extraterrestrial than a part of a real legal system, could interfere in the middle of the process and upset the applecart. Lawyers did not know much about the Convention and its mechanisms either; we were learning and trying to bring changes.
Over past years the situation has changed dramatically. Today the ECtHR is tremendously popular and well known even in the most remote Ukrainian villages. Its judgments are disseminated and widely discussed both by professionals and nonlawyers. Ukrainian lawyers refer to the Convention and the Court’s case law in their pleadings before courts and in procedural documents; accordingly, Ukrainian judges quote the Court’s judgments all the more (although not always in a fully satisfactory way – as will be argued in the following text). It means that Ukrainian judges nowadays feel themselves to be a part of the European judicial system; they are ready, willing, and able to ‘borrow’ the legal approaches of their European colleagues and to adopt their views on human rights matters.
Political and legislative processes are much slower. Dialogue between Strasbourg and Kyiv has its successes and defeats, which I’ll try to address in the following text.
Ukraine is now passing through an extremely difficult period in its history. I have drafted this chapter at the time when following a national rebellion, well-known today as ‘the EuroMaidan protests’, my country lost more than a hundred of its sons and daughters; and unfortunately the war is not yet over and deep crisis is still far from being overcome.
The EuroMaidan was triggered first by the Government’s decision not to integrate into the European community with its high democratic standards, and then – to a much larger extent – by violent attempts to scatter a peaceful demonstration on 30 November 2013, when for the first time in the independent Ukraine blood was spilled by police. Ukrainians realised that brutal violations of the core human rights had reached their limits, and the desire to see the human rights treaties as more than a scrap of paper brought about half of million people to the Kyiv central square the next morning. That became a point of no return, and subsequent passage of legislation restricting the most valued freedom for the civil society – freedom of assembly and association – acted as a further catalyst.
The peaceful protest that turned into a violent conflict consolidated the nation – during about three months, hundreds of thousands of people came to the streets to protect precisely the values promoted and shared by the European Community and safeguarded by the ECtHR. And the Court is much in demand by Ukrainians who had become more preserving in struggling for their right to live in the State adherent of rule of law.
These days the Court receives a record number of new applications against Ukraine (only in January 2014 we had 2,600 new cases). A relatively recent trend of a significant decrease of people’s trust in the domestic judicial system, on the one hand, and growing acquaintance of their rights, on the other hand, generates an inspiration to look for a fairness outside the framework of the internal legal system. However, this unshakeable faith in European justice is combined with a lack of sufficient knowledge of the Court’s competence and procedure, thus numerous applications are declared inadmissible already by a single judge, in accordance with a procedure introduced by Protocol No. 14 to the Convention (e.g., out of 15,245 new applications against Ukraine received by the Court in 2013, 7,765 were declared inadmissible in a single judge formation). Many legal problems have an endemic nature thus bringing many so-called clone cases to the Court, which will be mentioned in the following text.
But many complicated legal problems coupled with an increased perception of rights and freedoms and a desire to struggle for them, encourage Ukrainians to bring new important cases to the Court.
2. Historical aspects of the accession to the ECHR
Ukraine signed the European Convention on Human Rights (ECHR) in November 1995. The Convention then entered into force with respect to the Ukraine in September 1997. The very first cases against the Ukraine, examined by the Commission, concerned detention conditions in a death row. In November 1998 the Commission carried out a fact-finding visit to the Ukraine in this respect, and almost a year later, in October 1999, it expressed the opinion that there had been a violation of Article 3 as a result of the conditions of the applicant’s detention there, and also a violation of Article 8 and Article 9 (concerning family visits and visits by a priest for someone sentenced to the death penalty). A month after, in November 1999, the death penalty was abolished in Ukraine.
Since that time, for the past fifteen years, close to nine hundred judgments were given in cases against Ukraine, and more than thirty thousand applications were declared inadmissible by different Court formations, and about one thousand applications were struck down following a reached friendly settlement or accepted unilateral declaration by the Government.
It is noteworthy that the Constitution of Independent Ukraine was drafted at the time of active negotiations with the Council of Europe concerning the membership. The Constitution was adopted in June 1996, about seven months after Ukraine signed the European Convention. Thus many of its provisions on human rights and freedoms were drafted in conformity with the Convention. The Constitutional Court of Ukraine, for instance, in its landmark judgment on abolishment of the death penalty mentioned that Article 28 of the Constitution, according to which ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’ merely ‘reproduce[d] Article 3 of the European Convention on Human Rights of 1950’.Footnote 1
Obviously, application of the Convention and the Court’s case law in Ukraine raises a more general issue on the relationship between international and national legal norms in the Ukrainian legal system.
The Ukrainian Constitution implements a monistic approach and considers the international agreements ratified by the Verkhovna Rada (Ukrainian parliament) as an integral part of national legislation. According to Article 9 of the Constitution, ‘[i]nternational treaties in force, consented by the Verkhovna Rada of Ukraine as binding, shall be an integral part of the national legislation of Ukraine’.
Further, according to Article 19 of the Law on International Agreements of Ukraine, ‘Current international agreements of Ukraine, the binding nature of which has been ratified by the Verkhovna Rada of Ukraine, are a part of domestic legislation and shall be applied under the procedure provided for the norms of domestic legislation’. As concerns the correlation between international agreements (ratified by the Verkhovna Rada) and domestic legislation the same Article provides as follows:
[i]f the international agreement of Ukraine, which has come into force under the set procedure, sets rules other than those envisaged in the respective act of Ukrainian legislation, the rules of international agreement shall apply.
Thus it is clear that, in case of a discrepancy between a ratified international treaty and domestic legislation (except for the Constitution), the former will prevail.
However, Ukrainian scholars note that while the Ukrainian legal doctrine is based on the priority of international law over domestic one, the situation in practice is different. In particular, the national procedure for application of ratified international treaties by courts is not clearly defined in the legislation.Footnote 2
3. Mechanism of implementation
3.1. Law on the enforcement of judgments and application of practice of the Court
In 2006 the Ukrainian Parliament adopted the Law on the Enforcement of Judgments and Application of Practice of the ECtHR (‘the Law on Enforcement’), which was highly appreciated at the international level as one of the best examples of application of the Convention in the national legal systems. This law became a revolutionary contribution into the issue of implementation of the Convention at a national level. It also embodied the majority of relevant recommendations of the Committee of Ministers of the Council of Europe concerning execution of the Court’s judgments.
Because this Law on Enforcement plays a vital role in implementing the Convention’s standards in Ukraine I’ll dwell upon it. I must say at the outset that, unfortunately, its most progressive provisions were well in advance of their time and thus cannot be fully implemented.
One can assume that the most valued provision of the Law on Enforcement is Article 17, which provides that ‘courts shall apply case-law of the ECtHR as a source of law’. Due to this provision the Law was highly appreciated by different bodies of the Council of Europe. Despite disagreement by many legal scholars on such legislative recognition of the Court’s law-making function, today the very principle that national courts should rely on judgments of the Court does not raise the same sharp discussions as previously. Regrettably, nevertheless, the preceding provision serves more a vector of development of domestic courts’ practice rather than an enforceable legal norm. In order to fully enforce it, our judges should sufficiently know the Court’s case law and follow its development. Needless to say, their workload and linguistic barrier do not allow them to learn it to a necessary extent. Numerous seminars and conferences, of course, make their contribution, but their effect is still insufficient. Thus among several thousand judgments of national courts, which according to the databaseFootnote 3 contain reference to this Article 17 – application of the Court’s case law as the source of law, only in several judgments is there a deep analysis of a certain Convention provision and the Court’s case law. The remainder only contains a general reference to the most famous translated judgments, factual circumstances of which quite often do not correspond to factual circumstances of a case at stake (e.g., a rare case concerning the limits of free speech in connection with criticism of public figures gets along without mentioning the textbook precedent of Lingens v. Austria, which is often inappropriate in the circumstances of the case).
Former President of the Supreme Court of Ukraine, Mr Vasyl Onopenko, pointed in this respect:
In many cases, when applying the practice of the European Court, courts have no precise and unambiguous notion of the legal substance of such application. For this reason, the activities of Ukrainian courts often manifest abstract references to the practice of the European Court without indicating the specific decisions of this institution.
At times it happens the other way around – decisions of Ukrainian courts refer to specific decisions of the European Court but do not indicate their correlation with the norms of national law and the circumstances of a specific case.Footnote 4
Again, the situation is changing now and, as mentioned in the preceding text, Ukrainian judges feel now much more comfortable in application of the Convention than even several years ago.
Further, Article 18 of the Law on Enforcement, which obliges to use either official translation or original text, creates significant difficulties – there are not so many judgments published in official editions (in fact, the law binds the Ministry of Justice to translate and publish only judgments against Ukraine); and it would be quite unrealistic to rely on Ukrainian judges’ fluent knowledge of the Court’s official languages. It is even more unrealistic to imagine English- or French-language quotations in a judgement of Ukrainian court.
Another ambitious provision of the Law concerns an obligation imposed on a Governmental Agent to analyse, in each case, circumstances that led to a violation found, and to undertake necessary measures to eliminate the systemic or structural problems. There is no information on how this provision works. In principle, the part of the Law on Enforcement that deals with general measures to be implemented following the Court’s judgments is also far from being fully realised. A timely response to the existing structural problems in legislation and practice, as pointed by the Court, would allow not only to avoid clone applications to Strasbourg and pilot judgments, but also to restore health of the Ukrainian legal system.
Nevertheless, despite all practical deficiencies of this law, it demonstrates a strong desire of the State to implement the human rights standards as developed by the Court’s jurisprudence.
3.2. Executive level
The Ukrainian Government closely cooperates with international bodies that pay significant attention to the issue of implementation of the Court’s case law in Ukraine.
Thus, the Council of Europe Action Plan for Ukraine for 2008–11 stated that ‘Ukraine is one of the countries with the highest number of applications to the ECtHR and the capacity to implement the Convention must be strengthened. Efforts to train key professional groups on the ECHR must be continued. Judges, prosecutors, lawyers, law enforcement officials, NGOs, staff of the Ombudsman and the Government Agent for the ECtHR, and staff of penitentiary institutions should be further trained on ECHR standards and ECtHR case law’. Two hundred thousand euros were allocated with the aim of ‘expert support to national structures, NGOs and civil society within three broad areas of CoE competence: Human Rights training; Human Rights education and awareness-raising in European human rights standards’.Footnote 5
The action plan for 2011–14 mentions, as the specific objectives, strengthening the capacity of the judiciary and the Government Agent’s Office and raising awareness and disseminating knowledge on the Convention and case law in respect of Ukraine to national authorities and the judiciary, training judges, prosecutors, legal professionals, law enforcement agencies, and prison staff.Footnote 6
As concerns the European Union level, it is stated in the operational part of the European Union-Ukraine Association Agenda adopted by the European Union-Ukraine Cooperation Council on 23 November 2009 that ‘[t]he Parties agree to maintain dialogue ... [that]... shall cover ... following up on the implementation of the judgments of the European Court of Human Rights and promoting the evolving jurisprudence of the Court as a major source of international human rights law, with the support of the EU’.
In February 2013 the Cabinet of Ministers of Ukraine issued an action plan on integration of Ukraine in the European Union for 2013, in which it undertook, ‘in order to deepen cooperation on justice, freedom and security ... to ensure proper execution of judgments of the European Court of Human Rights against Ukraine in terms of individual and general approaches and, if necessary, submit appropriate proposals’.
Reference to the case law of the ECtHR is made in the ‘Concept of the State Target Program of formation of the legal aid system for 2013–2017’.Footnote 7 Describing the problem that is to be solved by the program, the Government noted that ‘[r]egardless [of the] international and constitutional obligations of Ukraine, the practice of free legal assistance remains unsatisfactory which leads to numerous judgments of the European Court of Human Rights against Ukraine on violation of the Convention, namely right to a fair trial’.
In this respect it is worth mentioning that in the case of Savitskyy v. Ukraine,Footnote 8 which concerned torture that led to severe disability of the applicant, the Court decided that in the particular circumstances of the case (the applicant, being fully handicapped, could not move unaided and required permanent assistance) ‘the State’s procedural obligations to ensure the effective participation of the victim in the investigation of his complaints of ill-treatment extended to the issues of providing effective access to free legal representation’. The Court criticised the State because ‘the domestic law does not provide for legal-aid schemes which would apply to the applicant’s situation’. At the same time, it appears that the Free Legal Assistance Act of Ukraine of 2 June 2011 addressed the mentioned problem.
3.3. Individual remedies
Rehearing of the case remains the most effective redress for a violation of a right to a fair trial following relevant judgment of the Court. Although in many European countries such a possibility exists in quite a limited way, Ukraine has made all necessary changes in its procedural legislation already in 2001 in the course of so-called petty judicial reform. Hence, the Code of Civil Procedure and Code of Commercial Procedure were amended with establishment of a new ground for rehearing of a case – if a judgment by an international court, whose jurisdiction is recognised by the Ukraine, acknowledges that a relevant court decision violates Ukraine’s international obligations (similar amendment to the Code of Criminal Procedure was introduced much later, in 2010). The Code of Administrative Justice, which created a separate branch of administrative jurisdiction in Ukraine, entered in force in 2005 and already contained an analogous provision.
Further judicial reform in 2010 kept this possibility of review of a case following the Court’s judgment unchanged for all types of cases. Therefore, in some cases against Ukraine the Court has specified under Article 41 that it is ‘indispensable for the proper protection of human rights that a retrial (a possibility of which is envisaged in the Ukrainian legislation) be provided forthwith should the applicant so request’.Footnote 9
4. The Court’s case law in respect of Ukraine and its effect at a national level
4.1. Pilot cases
Up to the time of drafting this chapter the Court relied on Article 46 of the Convention, that is, revealed systemic dysfunctions, in cases against Ukraine seven times. These judgments deserve mentioning.
4.1.1. Nonenforcement of final judicial decisions
The first Court’s pilot judgment against Ukraine in the case of Yuriy Nikolayevich Ivanov v. UkraineFootnote 10 concerned the issue of prolonged nonenforcement of domestic decisions and lack of effective remedies in this respect. The Court noted that the enforcement of the judgments in the applicant’s favour was hindered by a combination of factors, including the lack of budgetary allocations, the bailiffs’ omissions, and the shortcomings in the national legislation.
This judgment was delivered in 2009, but already five years before – in 2004 – in the case of Voytenko v. UkraineFootnote 11 the Court found that there was no effective remedy in Ukraine against lengthy nonenforcement of final judgments, contrary to requirements of the Convention. The Court repeated the same conclusion in many other cases, but nothing was done at the national level to address the problem, so Ukraine came up with a pilot judgment, which, likewise, unfortunately was not fully enforced despite the fact that it became final four years before. This situation, as stated by the Committee of Ministers, ’poses a serious threat to the respect of the rule of law and to the effectiveness of the Convention system’.Footnote 12
Having previously granted the Government an extension for execution of the pilot judgment and thus apparently not examining follow-up cases, in February 2012, in light of the failure of the Ukrainian Government to adopt the required measures, the Court resumed the examination of all cases covered by that judgment. Already in July 2012 the Court adopted the first grouped judgment disposing of 116 cases.Footnote 13 By the end of 2013, about 2,900 so-called Ivanov-type cases were disposed of in the same way.
However, despite the Court’s efficiency in handling the Ivanov-type cases, the number of new applications introduced against Ukraine has been increasing radically, particularly in the last few months of 2013.
This Court’s efficiency has not gone unnoticed at home. Out of the 15,245 new applications against Ukraine received by the Court in 2013 approximately 40 percent were of ‘‘Ivanov-type’’, marking a 300 percent increase compared to the previous year. That shows not only that the reasons led to the endemic nature of the prolonged non-enforcement of final domestic judgments at national level did not disappear, but also that those Ukrainians, whose judgments remained unenforced, realised that the only way to achieve enforcement within a reasonable period of time would be to apply to this Court.
In June 2012 the Parliament of Ukraine adopted a new ‘Law on State Guarantees with regard to enforcement of the judicial decisions’, which entered in force in 2013 and was amended on two occasions. This law introduced a procedure by which the debts under the domestic courts judgments were to be paid by the State Treasury of Ukraine if the creditors apply to the State Treasury according to a prescribed procedure.
Nevertheless, as from the end of 2013 the Court has received a number of applications concerning the refusal of the State Bailiffs and the State Treasury to enforce the domestic judgments and to pay relevant debts. Therefore, it will be up to the Court in a future to examine adequacy of this remedy in terms of its ability to cure the systemic dysfunction.
4.1.2. Problematic aspects of criminal procedure
Many judgments issued against Ukraine concerned different aspects of procedural guarantees of accused and suspects; some of them derive from deficient legal norms, others are result of administrative practice. Undoubtedly, it’s impossible to eliminate immediately a source of a violation of the Convention if it originates in well-established vicious practice. By contrast, a great deal of systemic violations found in judgments against Ukraine were due to lacunas in legislation. Thus, in the quasipilot case Kharchenko v. Ukraine,Footnote 14 the Court said that ‘it regularly found violations of Article 5 of the Convention as to the periods of detention not covered by any court order; and the court orders made during the trial stage which fix no time-limits for further detention, therefore upholding rather than extending detention, which is not compatible with the requirements of Article 5. Both issues seem to stem from legislative lacunae’.
Similar violations the Court had been finding in a number of judgments against Ukraine for years, but, as nothing was done by the national authorities to address the revealed structural problems, the Court resorted to the pilot-judgment procedure in the mentioned case of Kharchenko, and requested the Government to submit within six months the strategy adopted in this respect.
The Government provided the Committee of Ministers with the detailed analysis of a preventive detention procedure envisaged by the new Code of Criminal Procedure, which entered in force in November 2012. It was stressed, in particular, that the Code resolves the long-standing issue under Article 5 para. 1 of the Convention concerning unauthorised detention not covered by the court decision (in particular, between completion of pretrial investigation and beginning of trial procedure, while defendants were kept in custody solely on the basis of the fact that a bill of indictment has been submitted to the trial court). The Government claimed that the new procedure ‘ensure[d] the absence of periods of unauthorised detention a contrario the previous Code’.Footnote 15
However, the new applications received by the Court after the new Code entered into force dispelled an illusion that the long-standing flawed traditions in criminal procedure could be easily eliminated within a short period of time following legislative changes.
In September 2013 the Court communicated to the Ukrainian Government a new application concerning the same issue of pretrial detention without any court order during the period between the end of investigation and beginning of trial in February–April 2013, that is, when the provisions of the new Code were already applicable.Footnote 16
The very fact that this new case was urgently communicated to the Government demonstrates that the reform of legal system by means of the Convention mechanisms is a two-way street, and the Court is always ready to assist the State, pointing at systemic shortcomings and the adequacy of their rectification.
Other problematic aspects of criminal procedure, criticised by the Court over past years, were:
(a) the general practice of unregistered detention by the police; the general practice of using administrative arrest for criminal investigation purposes without safeguarding the detainee’s procedural rights, in particular the right to a defence; failure to state the grounds when authorising detention on remand and to set a time-limit for such detention (Article 5 para. 1);
(b) failure to bring the arrested person before a judge promptly; failure to advance relevant and sufficient grounds for extending detention on remand as well as to consider any alternative preventive measure (Article 5 para. 3);
(c) lack of a clear procedure in Ukrainian legislation which would allow speedy and due review of the lawfulness of detention on remand (Article 5 para. 4); and
(d) lack of a remedy in Ukrainian legislation capable of providing compensation for the aforementioned breaches (Article 5 para. 5).Footnote 17
For all cases raising these issues the Government submitted to the Committee of Ministers a detailed account on how provisions of the new Code of Criminal Procedure would eradicate the identified shortcomings.
As concerns a structural problem of lack of relevant and sufficient grounds in judicial decisions to held one in custody, the new Code gave a thorough explanation of grounds capable to justify this measure. The concept is that burden of proof of such grounds is on prosecution.
In one of the latest meetings of the Committee of Ministers in this respect the Committee mentioned that the adopted legislative measures appear to be promising, however an in-depth evaluation of the developments that have taken place would be preferable. There is no comprehensive information on relevant changes in the administrative practice and as regards an impact assessment of the functioning of the new Code in practice. As was mentioned by the Committee, updated information was still required as regards the state of implementation of the entire reform strategy (including on the monitoring of the domestic courts’ practice).
The quasipilot judgment in the case of Balitskiy v. UkraineFootnote 18 limelighted on additional problems in the area of guarantees in criminal proceedings. The applicant was convicted on the basis of self-incriminating statements made in the absence of a lawyer while being arrested for an administrative offence. The Court condemned the practice of placing a person under administrative arrest to ensure his or her availability for questioning as a criminal suspect, which it had previously found in other Ukrainian cases to be contrary to requirements of Article 5 of the Convention.
The Court further noted that the initial classification of the crime as a simple murder rather than a qualified murder (murder for profit) had allowed the investigation to avoid the requirement of the obligatory legal representation. It mentioned that it had examined similar allegations in previous cases against Ukraine ‘in which the circumstances give rise to strong suspicion as to the existence of an ulterior purpose in the initial classification of the offence and the applicants were effectively denied appropriate legal assistance owing to the way in which the investigator exercised his discretionary power concerning the classification of the investigated crime’. This artificial degrade of severity of the offence in order to classify it under a provision of the Criminal Code, which would not require obligatory legal representation of the suspect, made the Court invite the authorities to address this malpractice in specific reforms in order to avoid further repetitive complaints of this type.
In their submissions to the Committee of Ministers the Government of Ukraine stressed that the new Code of Criminal Proceedings clearly provides that evidence obtained from a witness later acknowledged to be a suspect in the criminal proceedings are to be declared inadmissible and excluded from evidence data. What is more, the mere notion of ‘voluntary surrender’ (явка з повинною) was removed from the criminal procedure, which makes a practice of keeping one in administrative detention as a pretext for his or her questioning as a suspect merely useless.Footnote 19 It is to be noted that the new Code for the first time introduced a procedure of declaring evidence inadmissible and further exclusion of such evidence.
Personally, I consider the new Code of Criminal Procedure to be one of the biggest successes that the Council of Europe bodies, including primarily the Court, reached for the legal order in Ukraine. It worth mentioning that up to November 2012 Ukraine had the Code of Criminal Procedure drafted in 1960 (although amended on numerous occasions) for a completely different country (USSR) with a completely different legal ideology. Although important changes introduced to the Code in 2001 significantly extended application of adversarial principle in criminal proceedings, Ukrainian criminal process still remained influenced by its ‘Soviet heritage’. Moreover, some ‘progressive’ features of adversarial proceedings were artificially incorporated into existing machinery, which thus did not function as an integral process.
Yet, the more than one-year experience of application of the new Code in Ukraine demonstrated that it is not easy to embody even the best imaginable new law into social relations existing for decades. The real reforms take time, and close cooperation with the ECtHR, hopefully, can assist in prompt positive changes.
4.1.3. Ill-treatment of detainees
Additional demand to ‘urgently put in place specific reforms in the legal system’ was made in another quasipilot judgment in the case of Kaverzin v. Ukraine,Footnote 20 where the Court, being struck by a number of cases of ill-treatment by police and ineffective investigation in this respect, ordered ‘to ensure that practices of ill-treatment in custody are eradicated, that effective investigation is conducted in accordance with Article 3 in every case where an arguable complaint of ill-treatment is raised’. The Court mentioned that ‘the above-mentioned violations were neither prompted by isolated incidents, nor were attributable to a particular turn of events, but were the consequence of regulatory shortcomings and the administrative conduct of the authorities with regard to their obligations under Article 3 of the Convention’. Referring to the Ukrainian Ombudsman’s reports the Court mentioned that ‘the evaluation of police officer’s work based on the number of solved crimes has been one of the factors contributing to the use of torture against criminal suspects’. The Court further pointed out the ‘double role’ of the prosecutors in criminal trials, who both prosecute on behalf of the State and supervise of the lawfulness of pretrial investigations. These conflicting tasks, according to the Court’s findings, explain the prosecutors’ reluctance to investigate complaints of ill-treatment – because usually criminal suspects are ill-treated with the aim of extracting a confession – which, quite unfortunately, remains the ‘queen of proof’ as of Vyshynskiy time, ‘it cannot be ruled out that prosecutors have not been interested to conduct full-scale investigations that would be potentially capable of undermining the reliability of such evidence’. Given the fundamental value of prohibition of ill-treatment in a democratic society, the Court called ‘for the prompt implementation of comprehensive and complex measures’.
Provisions of the new Code of Criminal Procedure that envisage an obligation to an open criminal investigation each time when there is a suspicion that a criminal offence has been committed is an extremely positive step ahead in this respect. This development appears to solve a persistently found problem in cases against Ukraine – numerous refusals by the prosecuting authorities to institute proceedings following complaints about ill-treatment. Removal, as mentioned previously, of a ‘voluntary surrender’ from criminal proceedings and establishing a procedure to declare evidence inadmissible (e.g. evidence obtained with a violation of defence rights) should also significantly diminish flagrant practice of ill-treatment.
For the time of drafting this chapter, this is the only pilot judgment on ill-treatment in the history of the Court.
4.1.4. Accountability of judges
One of the most important judgments against Ukraine was the recent case of Oleksandr Volkov v. Ukraine,Footnote 21 as it touched upon the central issue of the whole system of human rights protection – independence of judiciary.
The case of Oleksandr Volkov is crucial primarily due to the fact that for the first time the Court has conducted an elaborate study of the system of dismissal of judges that existed in a State. Given its utmost importance for a democratisation process in Ukraine I’ll address it in more detail.
The case was brought by a former Supreme Court judge, who was dismissed following a procedure that violated, as established by the Court, both Article 6 and Article 8 of the Convention. In particular, the applicant was dismissed for a ‘breach of oath’, which was not sufficiently detailed in the domestic law at the material time. The text of the judicial oath, as noted by the Court, ‘offered wide discretion in interpreting the offence of “breach of oath”’. Pleading before the Court, the Government submitted that the relevant legislation had been amended shortly afterwards. Interestingly, given the significance of the issue, the Court even exceeded the scope of the case and, referring to the ‘new legislation [that] now specifically deals with the external elements of that offence’, said obiter dictum, that ‘while the new legislation did not apply to the applicant’s case, it is relevant to note that the specification of “breach of oath” in that section still provides the disciplinary authority with wide discretion on this issue’.
The Court further noted a political interference in the dismissal of judges in Ukraine. It doubted the independence of judges of the Highest Administrative Court (HAC) of Ukraine that reviewed decisions of the High Council of Justice (HCJ) and the Parliament, because these judges
were also under the disciplinary jurisdiction of the HCJ. This means that these judges could also be subjected to disciplinary proceedings before the HCJ. Having regard to the extensive powers of the HCJ with respect to the careers of judges (appointment, disciplining and dismissal) and the lack of safeguards for the HCJ’s independence and impartiality ... , the Court is not persuaded that the judges of the HAC considering the applicant’s case, to which the HCJ was a party, were able to demonstrate the “independence and impartiality” required by Article 6 of the Convention.
In this respect a detailed analysis by the Court of independence and impartiality of the HCJ – the first and key body in a procedure of bringing a judge to accountability – is of interest.
Referring to the European Charter on the statute for judges, the Court noted that ‘with respect to disciplinary proceedings against judges, the need for substantial representation of judges on the relevant disciplinary body has been recognised’. At the same time, given the state of legislation at the material time, ‘the applicant’s case was determined by sixteen members of the HCJ ... , only three of whom were judges’.
Notably, the Government again referred to the relevant amendments in the ‘Law on High Council of Justice’ adopted shortly after the events in question, according to which ten members of the HCJ should be appointed from the judicial. Here once more, although these amendments did not affect the applicant and the Court could merely ignore them, considering significance of the matter the Court took the liberty of saying obiter dictum:
In any event, [these amendments] are insufficient, as the bodies appointing the members of the HCJ remain the same, with only three judges being elected by their peers. Given the importance of reducing the influence of the political organs of the government on the composition of the HCJ and the necessity to ensure the requisite level of judicial independence, the manner in which judges are appointed to the disciplinary body is also relevant in terms of judicial self-governance. As noted by the Venice Commission, the amended procedures have not resolved the issue, since the appointment itself is still carried out by the same authorities and not by the judicial corps.
Under Article 46 of the Convention the Court noted that the case disclosed ‘serious systemic problems as regards the functioning of the Ukrainian judiciary. In particular, the violations found in the case suggest that the system of judicial discipline in Ukraine has not been organised in a proper way, as it does not ensure sufficient separation of the judiciary from other branches of State power. Moreover, it does not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence, the latter being one of the most important values underpinning the effective functioning of democracies’.
Ukraine was urged to take general measures aimed at reforming the system of judicial discipline, including legislative reform involving the restructuring of the institutional basis of the system.
Quite apart from the previously mentioned legal topic, the judgment in the Oleksandr Volkov case asserted influence on the Ukrainian political life since it addressed a long-discussed in the Ukrainian society issue of abuse of the electronic voting system by parliamentarians. Mr Volkov claimed that while dismissing him the Parliament abused the electronic voting system. He argued that during the plenary vote on his dismissal some Members of Parliament had unlawfully cast votes belonging to other Members of Parliament who had not been there. His complaint was supported by the video of the plenary meeting of Parliament and by the statements of four Members of Parliament certified by a notary.
The Court found that ‘the decision on the applicant’s dismissal was voted on in the absence of the majority of the members of Parliament. The MPs present deliberately and unlawfully cast multiple votes belonging to their absent peers. The decision was therefore taken in breach of [relevant legislation], requiring that members of Parliament should personally participate in meetings and votes’. Therefore, the principle of legal certainty had been undermined, in breach of Article 6 para. 1 of the Convention.
The Court had thus drawn down the curtain in a painful point of the legislative process – it was well known and widely criticised in the society that the majority of laws were voted for in the same way, that is, when one Member of Parliament pressed several voting buttons using voting carts belonging to his or her absent peers.
Following judgment in the Oleksandr Volkov case, in February 2013, the Ukrainian Parliament introduced necessary amendments to the Law on the Rules of Procedure of the Verkhovna Rada of Ukraine. The changes were also introduced to a system of tracking violations of the personal voting rule, and in case of a violation the voting card of an absent Member of Parliament shall be forfeited.
This positive development slackened tension in the Ukrainian society that found ignominious the very fact that the law makers bluntly violate law.
4.1.5. Freedom of assembly
Significance of the quasipilot judgement in the case of Vyerentsov v. UkraineFootnote 22 for a democratic process can hardly be overestimated. The Court found violations of Articles 11 and 7 of the Convention, which stem from a legislative lacuna concerning freedom of assembly in Ukraine. In this case, the applicant was arrested for breach of procedure for holding a demonstration, regardless of an absence of domestic legislation establishing such a procedure. The Court noted that the domestic judicial authorities relied on a relevant decree on the procedure for organising and holding meetings, rallies, street marches, and demonstrations in the USSR of 1988, which provided, as was confirmed in the practice of the domestic courts, for a different procedure from the one outlined in the Constitution:
Indeed, whilst the Ukrainian Constitution requires advance notification to the authorities of an intention to hold a demonstration and stipulates that any restriction thereon can be imposed only by a court, the 1988 Decree, drafted in accordance with the Constitution of the USSR of 1978, provides that persons wishing to hold a peaceful demonstration have to seek permission from the local administration which is also entitled to ban any such demonstration. From the preamble of the Decree it is clear that it had been intended for a very different purpose, namely for only certain categories of individuals to be provided by the administration with facilities to express their views in favour of a particular ideology, this in itself being incompatible with the very essence of the freedom of assembly guaranteed by the Ukrainian Constitution and the Convention. As found by a domestic court ... , demonstrations under the 1988 Decree were considered on the basis of their compatibility with non-existent constitutions of non-existent subjects.
The Court further accepted ‘that it may take some time for a country to establish its legislative framework during a transitional period’, however a delay of more than twenty years was not justifiable, ‘especially when such a fundamental right as freedom of peaceful assembly is at stake’. The Court concluded that the interference with the applicant’s right to freedom of peaceful assembly was not prescribed by law.
In its judgment the Court referred to the data of the Ukrainian Helsinki Human Rights Union, according to which in 2012 the Ukrainian authorities sought to restrict peaceful gatherings in 358 cases, and in 90 percent of the cases they succeeded.
Under Article 46 the Court stressed that ‘specific reforms in Ukraine’s legislation and administrative practice should be urgently implemented in order to bring such legislation and practice into line with the Court’s conclusions in the present judgment and to ensure their compliance with the requirements of Articles 7 and 11 of the Convention’.
In order to enforce this Court’s judgment, in July 2013 a group of Members of Parliament from several political factions submitted to the Parliament a draft law ‘On Peaceful Assembly’. The draft law waits for its examination.
4.1.6. Hindrance with the right to submit an application to the Court
The case of Vasiliy Ivashchenko v. UkraineFootnote 23 concerned, among others, the authorities’ failure to comply with their obligation under Article 34 to provide the applicant with all necessary facilities in order to ensure an effective examination of his application by the Court. In particular, the applicant, who was in detention, was not provided with copies of necessary documents to prove allegations of violations of the Convention that he claimed before the Court. The Court found that ‘the issue resulted from the absence of a clear and specific procedure enabling prisoners to obtain copies of case documents, either by making such copies themselves, by hand or using relevant equipment, or having the authorities make copies for them. While there were domestic regulations providing for public access to documents kept by the authorities, including court case files, the national judicial authorities did not consider themselves under an obligation to assist prisoners, taking into account their specific situation, in obtaining such copies’.
Under Article 46, the Court held that this constituted a systemic problem and considered that adequate legislative and administrative measures should be taken without delay by Ukraine in order to ensure that those who are deprived of their liberty have effective access to documents necessary for substantiating their complaints before the Court.
5. Other important judgments which made a difference
5.1. Conditions of detention
Although there was no pilot case on conditions of pretrial detention in Ukraine, the Court has addressed this issue in more than forty judgments and found a violation of Article 3.Footnote 24
The cases revealed poor material conditions of detention in police departments (ITT), pretrial detention centres (SIZO), and prisons, largely resulting from severe overcrowding, lack of hygiene and sanitation facilities, ventilation, and access to natural light and fresh air. In some cases the Court has also found lack of adequate medical treatment precisely for tuberculosis, HIV, and hepatitis (which led, in some cases, to the death of prisoners).Footnote 25 The Court has also stressed appalling conditions of detainees’ transportation to and from detention facilities both by road and rail. In many cases the Court relied on reports of the Committee for the Prevention of Torture and Inhuman and Degrading Treatment that, up to January 2014 has carried out eleven visits to Ukrainian detention facilities.
Finally, absence of effective domestic remedies to complain about these violations and to obtain redress was found to be in violation of Article 13.
Obviously, all mentioned problems are of a structural nature. Thus a comprehensive reform of the penitentiary system is necessary as soon as possible. It follows from the reports of Ukrainian Government to the Committee of Ministers that, in particular as concerns ITT, ‘since 2006, the Ministry of the Interior has been implementing a programme on construction, reconstruction, repair of police detention facilities aimed, inter alia, at solving the problem of overcrowding and poor sanitary conditions’.Footnote 26
Furthermore, the amendments introduced to the Code on Execution of Sentences in 2010 set a norm of personal space of at least four square meters per prisoner as of January 2012. Some construction works and repairs were done through these years in different facilities. It is also argued that the new Code of Criminal Procedure, with its wide range of preventive measures and strict requirements for application of pretrial detention, significantly discharged Ukrainian SIZOs (by more than 30 percent already in 2013).
Regarding medical assistance in detention, a priority strategy was elaborated by the Penitentiary Department ‘for curbing the spread of the HIV virus’. Furthermore, on 10 February 2012 a joint Order of the Ministry of Justice and the Ministry of Health Protection ‘[o]n co-operation of medical facilities of the State Penitentiary Service of Ukraine with healthcare institutions as regards medical treatment of detainees’ was adopted, setting up procedures of primary medical examination of persons to be placed in penitentiary facilities, their treatment while in detention, emergency medical aid, and postrelease treatment.Footnote 27
Unfortunately, the Court’s findings under Article 13 – lack of effective domestic remedies for complaints about detention conditions – remained unanswered. Although Ukrainian legislation does not preclude the courts from allowing some financial reimbursement,Footnote 28 the national courts remain reluctant in granting compensation to detainees for their anguishes.
5.2. Detention pending extradition
Many Court’s findings are still waiting for their implementation. In fact, the proceedings before the Committee of Ministers were completed as the necessary general measures were undertaken concerning only several groups of cases against Ukraine.
A group of cases concerning extradition can serve a successful example. In 2008, in the case of Soldatenko v. Ukraine,Footnote 29 the Court found that there is no provision in the legislation, which would cover keeping in detention a person, in respect of whom the extradition request is pending. In two years, the relevant amendment to the Code of Criminal Procedure entered into force. The new legislation set up a detailed procedure for arrest and detention with a view to extradition. It established rules on apprehension, provisional arrest and arrest upon obtaining an extradition request, grounds and time limits for detention pending extradition, and provided for an appeal procedure.
The Court already had an opportunity to examine this new legislation for the purposes of Article 5 para. 1 (f) of the Convention and found it ‘to be sufficiently clear and precise, while their accessibility was not questioned by the applicant’.Footnote 30
5.3. Right of appeal in cases related to administrative offences
Another group of cases for which general measures were implemented concerned the impossibility to challenge a verdict in cases of administrative offence, which are criminal in the autonomous meaning of the Convention, contrary to requirements of Article 2 of Protocol No.7 to the Convention.Footnote 31 The relevant changes to the Code on Administrative Offences were introduced in 2008. This example could be mentioned as a successful one, had the legislator made a one step ahead and recognised that, if majority of the offences that are administrative under Ukrainian law are criminal according to the Convention, quite apart from the requirements of Article 2 of Protocol No.7, an accused in such administrative proceedings should be given all procedural guarantees envisaged in Article 6 of the Convention for criminal proceedings. Amendments to this effect could prevent the Court from finding relevant violations in subsequent cases. Unfortunately, that was not done, and in further cases the Court found violations of Article 6. Thus, in the case of Kornev and Karpenko v. Ukraine,Footnote 32 a violation of the applicant’s right to a fair trial in the administrative (criminal according to the Convention) proceedings was found on account of the fact that she was not afforded adequate time and facilities for the preparation of her defence (violation of Article 6 para. 1 taken together with Article 6 para. 3 (b).).
5.4. Force-feeding of detainees
In the case of Nevmerzhitskiy v. UkraineFootnote 33 the Court found the procedure prescribed in the relevant Decree of the Ministry of Internal Affairs for force-feeding of detained persons who go on hunger strike, namely the restraints applied – handcuffs, a mouth-widener, and a special rubber tube inserted into the food channel – in the event of resistance, with the use of force, amounted to torture within the meaning of Article 3 of the Convention, if there is no medical necessity. This decree was replaced by another one in 2000, which also does not appear to satisfy fully requirements of Article 3 of the Convention, and was finally quashed in 2013.
5.5. Freedom of assembly and association
The Law of Ukraine ‘On Public Associations’, adopted in 2012, became a significant achievement for democratisation process in Ukraine. This law had been developed and promoted during several years by some nongovernmental organisations (NGOs) following the Court’s judgment in the case of Koretskyy v. Ukraine.Footnote 34
This case concerned a violation of the applicants’ right to freedom of assembly due to the authorities’ refusal to register their association on the ground that its articles had not been drafted in accordance with domestic law. The City Department of Justice stated that an association did not clearly indicate if it had a local or an all-Ukrainian status; that an association could not carry out publishing activities on its own, publicise its activities, lobby the authorities about environmental protection, or carry out expert examinations in this field; that the managing board of an association was not entitled to exercise everyday administrative functions; and that the association could not engage volunteers as members of the association. After unsuccessful attempts to challenge that decision before the domestic judicial authorities, the applicant lodged the case before the ECtHR. The Court found a violation of Article 11 of the Convention, having stated that the provisions of the Associations of Citizens Act, which regulated the registration of associations at the material time, were too vague to be sufficiently ‘foreseeable’ and granted an excessively wide margin of discretion to the authorities to decide whether a particular association could be registered. The Court has also found little justification for then existing restrictions on the possibility for associations to publish and distribute propaganda, to involve volunteers as members, or to carry out everyday activities through a managing body. As concerns the territorial limitation of the activities of associations with local status, the Court considered as burdensome the requirement for associations wishing to have a pan-Ukrainian status, in other words, to set up local branches in the majority of the twenty-five regions of Ukraine.
It appears that the law adopted in 2012 eliminated the previously mentioned problematic aspects of the previous legislation on the issue.
Thus it clearly provides for only two grounds for refusal of registration – if provisions of the articles of association or other documents submitted for the registration contravene the Constitution of Ukraine or other requirements of the said law concerning founders of an association and its name. The law does not contain restrictions as regards involving volunteers as members, or a possibility for a managing body to determine an association’s everyday activities.
6. Impact of Ukrainian case law
On its turn, Ukrainian practice also enriched the case law of the Court.
In one of the first judgments against Ukraine, Sovtransavto Holding v. Ukraine,Footnote 35 the Court for the first time formulated a general rule concerning the positive obligation of a State as regards the protection of property: ‘[t]he States are under an obligation to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private parties’.Footnote 36 In this case the Court found a number of very serious procedural shortcomings, including interventions of the State executive branch into the relevant proceedings and considered that they were ipso facto incompatible with the notion of an ‘independent and impartial tribunal’. Thus the Court introduced this positive obligation by an analogous way it has done so in cases not concerning protection of property.
In another important case Editorial Bord of Pravoye delo and Shektel v. Ukraine,Footnote 37 which concerned an order to a newspaper to pay damages for having published an anonymous letter found on the Internet, the Court imposes a positive obligation on States to set up an appropriate legislative framework to protect journalists’ freedom of expression on the Internet.
The judgment in the case of Savitskyy v. UkraineFootnote 38 complements the case law on the procedural limb of Article 3. The Court stated that the State’s procedural obligations to ensure the effective participation of the victim in the investigation of his complaints of ill-treatment means that he or she must be provided with an effective access to free legal representation.
In the previously mentioned judgment in the case of Oleksandr Volkov v. UkraineFootnote 39 the Court required the State, in the operative provisions, to reinstate the applicant in his post as a Supreme Court judge or an equivalent post – and this was a rather innovative step in application of the principle of restitution in integrum by the Court.
The case of Nataliya Mikhaylenko v. UkraineFootnote 40 concerned lack of access to court for a person seeking restoration of his or her legal capacity. While in Stanev v. BulgariaFootnote 41 the Grand Chamber interpreted Article 6 para. 1 as guaranteeing that anyone who had been declared partially incapable had direct access to a court to seek restoration of his or her legal capacity, in the said Ukrainian case this guarantee was expanded to those declared fully incapable.
It also appears that the adopted judgments in the cases of Lutsenko v. UkraineFootnote 42 and Tymoshenko v. Ukraine,Footnote 43 as well as a number of pending cases against former governmental officials, are called upon to clarify requirements of Article 18 of the Convention that, for the moment, remains a grey area in the Court’s case law.
Hence, in the case of Mr Lutsenko – a well-known opposition leader and ex-Minister of Interior, violation of Article 18 in conjunction with Article 5 was found because the prosecuting authorities seeking the applicant’s arrest explicitly indicated the applicant’s communication with the media as one of the grounds for his arrest, and thus the restriction of the applicant’s liberty permitted under Article 5 para. 1 (c) was applied not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, but also for other reasons. Similarly, in the case of Mrs Tymoshenko, the former Ukrainian Prime Minister, the purpose of the applicant’s detention was to punish the applicant for a lack of respect towards the court that, it was claimed, she had been manifesting by her behaviour during the proceedings. Consequently, the restriction of the applicant’s liberty permitted under Article 5 para. 1 (c) was applied for a wrong reason.
7. Impact of the Court’s case law on national courts
7.1. The Constitutional Court of Ukraine
Researchers and judges of the Constitutional Court of Ukraine (CCU) indicate that there are three ways by which the CCU applies the ECtHR’s case law.Footnote 44 In some judgments the CCU, while substantiating its own legal position, merely mentions that there are some international standards in this respect without further specification. It should be noted that this technique is not emblematic any more in recent years. For instance, in the case on independence of judges as part of their statusFootnote 45 the Constitutional Court stated that its approach to the issue of judicial independence is also enshrined in the Convention and other international documents, and is also confirmed by the Court’s case law. No further references – to the provisions of the Convention or the Court’s judgments – were made.
The second way is more prevailing – the CCU invokes concrete provisions of the Convention and refers to the most well-known judgments of the Court without, however, a detailed analysis of the Court’s legal position. Thus, in the case upon the constitutional petition of the Board of the Pension Fund of Ukraine, concerning official interpretation of the legislative provisions on a possibility to change a scale of social benefits depending on social economic capabilities of state,Footnote 46 the Constitutional Court stated that ‘the European Court of Human Rights in its Judgment of 9 October 1979 in the case of Airey v. Ireland also held that social and economic rights largely depended on the situation in the states, especially financial. These postures apply as well to the issues of acceptability of reduction of social benefits, as stated in the judgment of this Court in the case of Kjartan Ásmundsson v. Iceland of 12 October 2004’. This brief reference to the Court’s judgments without further precision was criticised by the dissenting judge in his separate opinion, according to which the previously mentioned judgments ‘concerned different casual aspects’. Having explaining ratio decidendi of these judgments, the dissenter came to a conclusion that they ‘by no means could be used as an appropriate argumentation for completely different stance of the Constitutional Court of Ukraine’. Without interfering into this legal dispute one can just note that a well-defined analysis of the Court’s case law would furnish legitimacy of the Constitutional Court’s position in a specific case.
And that represents the third way of application of the Court’s case law by the Constitutional Court in its decisions. In past years the CCU more and more often resorts to an assessment of the Court’s conclusions in different cases on the content and scope of a particular Conventional provision or particular legal guarantee.
In the case concerning conformity with the Constitution of Ukraine of some provisions of the Code of Administrative Offences and the Law of Ukraine ‘On Militia’ on terms of the administrative arrestFootnote 47 the Constitutional Court referred to its interpretation of the principle of legal certainty, according to which it is one of the elements of the rule of law that states that restriction of the fundamental human rights and are legitimate only if application of the relevant legal provisions is foreseeable. In other words, restriction of any right should be based on the criteria that provide a person with a possibility to distinguish lawful behaviour from an unlawful one. The CCU referred to the cases of Baranowski v. PolandFootnote 48 and Novik v. UkraineFootnote 49 in which the Court recalled that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty is satisfied. It also relied on the case of Soldatenko v. UkraineFootnote 50 in which the Court held that ‘In laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 para. 1 does not merely refer back to domestic law ... , it also relates to the “quality of the law”, requiring it to be compatible with the rule of law.... “Quality of law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness’. Basing on these arguments the CCU concluded that the impugned provisions did not satisfy requirements of ‘legal certainty’ and thus had to be declared unconstitutional.
In the case concerning official interpretation of the provision of Article 62.3 of the Constitution of Ukraine that ‘accusation shall not be based on illegally obtained evidence’,Footnote 51 the CCU referred to cases of Teixeira de Castro v. PortugalFootnote 52 and Shabelnik v. Ukraine.Footnote 53 It found that a conviction shall not be based on any information or evidence obtained as a result of operative and investigation activity by the authorised person contrary to the constitutional provisions or in violation of the procedure envisaged by the law, as well as obtained through their collection and fixation by a person, not authorised to perform such activities.
7.2. Courts of general jurisdiction and specialised courts
As argued, the Law on Enforcement obliges Ukrainian judges to use the Convention and the Court’s case law in their practice. The Code of Administrative Justice clearly provides that ‘a court shall apply the principle of the rule of law by taking into account the case-law of the European Court of Human Rights’. The same provision was introduced to the new Code of Criminal Procedure – ‘the principle of the rule of law in criminal proceedings shall be applied with due consideration of the practices of the European Court of Human Rights’.
According to the Ruling of the Plenary of the Supreme Court of Ukraine of 18 December 2009 ‘On a judicial decision in a civil case’, reasoning part of each judgment should contain, if necessary, a reference to the Convention and the Court’s case law that serves a source of law. The same position was repeated in some other rulings of the Plenary.
The task of summarising the reception of the Court’s practice by national judges in Ukraine is hardly feasible, it varies from a court to a court and from a judge to a judge. Another factors to be taken into consideration are: the subject matter of each particular case and existence of the relevant well-established Court’s practice and its official translation into Ukrainian.
Thus, for example, an extensive use of the Court’s practice can be found in decisions of the domestic courts concerning alleged ill-treatment. Very often courts quash rulings of the prosecuting authorities not to institute criminal proceedings following a complaint about ill-treatment, citing judgments of the Court in cases against Ukraine and explaining what shall be done to have an ‘effective investigation’ into complaint of use of force by the police as developed by the Strasbourg court.
Unfortunately, this courts’ stance remained ineffective in a struggle against ill-treatment by police officers, as practice shows that following such decisions the prosecuting authorities continue to evade effective investigation, ignore the courts’ instructions, and refuse to open criminal proceedings or terminate pending proceedings on the same grounds as found previously inacceptable.Footnote 54 The courts then continue to insist on standards of effectiveness, and this ‘ping-pong’ between prosecuting and judicial authorities can last for years. For example, in the case of Vergelskiy v. UkraineFootnote 55 the prosecutor’s decisions not to institute criminal proceedings were quashed thirteen times.
Another area in which the Court’s case law is extensively used is defamation claims. Virtually all judgments on defamation in past years refer to Article 10 of the Convention as interpreted by the Court both in judgments against Ukraine and against other States. Interestingly, the very first judgment against Ukraine on Article 10 of the Convention, Ukrainian Media Group v. Ukraine,Footnote 56 according to analysts had an instant impact on Ukrainian courts and immediately became an effective way to protect journalists from politicians’ lawsuits.Footnote 57 In that case the Court found that the sanctions for defamation were disproportionate to the aim pursued as value judgments were not distinguished from statements of facts. The vice president of the Ukrainian Association of media lawyers in her analysis refers to the defamation case brought by the regional governor in which the defendant’s arguments concerning a wider limit of acceptable criticism with regard to a politician acting in his public capacity than in relation to a private individual were first rejected by the presiding judge. However, as soon as the Court’s judgment in the Ukrainian Media Group case appeared, he had changed his mind and dismissed the claim, having referred to Article 10 of the Convention and stated that the disputed information ‘was a value judgments of the author about the plaintiff, who was a politician and a public figure, and thus had to be more tolerant to the value judgments against him’.Footnote 58
It appears that after almost nine years since the judgment was passed and many other relevant Court’s judgments were translated into Ukrainian and disseminated among the judges, distinction between value judgments and statements of fact does not create any problem.
The Court’s case law is traditionally widely used in the administrative jurisdiction, as it was introduced in 2005 already with an explicit requirement to rely on the Convention.
Two judgments are most cited by the administrative courts up to now – Kechko v. UkraineFootnote 59 and Shchokin v. Ukraine.Footnote 60
The case of Kechko concerns payment of social benefits – the issue generating vast majority of cases before the administrative courts in Ukraine. The Court found that the denial by the domestic authorities of the applicant’s entitlement to a benefit, envisaged by law but suspended by a secondary legislation, was arbitrary and not based on the law. The Court considered that the State could introduce, suspend, or terminate the payment of benefits by making the appropriate legislative changes. ‘However, once a legal provision is in force which provides for the payment of certain benefits and the conditions stipulated have been met, the authorities cannot deliberately refuse their payment while the legal provisions remain in force’. This Court’s finding is widely referred to by administrative courts when they allow claims of plaintiffs whose social benefits were postponed or diminished due to a lack of sufficient budgetary funds.
In the case of Schokin the applicant complained that the tax authorities had unlawfully increased his income tax liability. He argued that the tax rate in respect of the income earned outside the principal place of business had been regulated by three different acts, and the tax authorities arbitrarily relied on the less favourable of them. Having been reminded that it was primarily for the national authorities to interpret and apply domestic law and assuming that the interpretation by the domestic authorities was plausible, the Court was not satisfied with the overall state of domestic law on the matter in question, given the manifest inconsistency of relevant legal acts with each other. The Court came to a conclusion that ‘the lack of the required clarity and precision of the domestic law, offering divergent interpretations on such an important fiscal issue, upset the requirement of the “quality of law” under the Convention and did not provide adequate protection against arbitrary interference by the public authorities with the applicant’s property rights’. Thus the Court concluded that the interference with the applicant’s property rights had not been lawful for the purpose of Article 1 of Protocol No. 1.
This judgment significantly influenced the administrative jurisprudence in tax matters in Ukraine. The new Tax Code entered into force in 2011 and its transitional provisions also permitted controversial interpretations, which allowed tax authorities and, subsequently, courts to take opposite approaches in similar cases. Eventually, the Highest Administrative Court of Ukraine took the side of tax payers, with a view of the position of the Court in Shchokin case and a clear provision of national legislation (also underlined in Shchokin), according to which if the norms of different laws or normative legal acts offer ambiguous or multiple interpretations of the rights and obligations of taxpayers and supervising authorities, the decision taken shall be in favour of the taxpayer.Footnote 61
Some other Court’s judgments in tax matters are successfully used by Ukrainian taxpayers in their litigations. Administrative courts quash rulings of the Tax Administration imposing fines on legal entities for alleged breach of the value added tax (VAT) obligations by their business partners. Apart from relevant norms of Ukrainian legislation the courts refer to the Court’s findings in the cases of Intersplav v. UkraineFootnote 62 and ‘Bulves’ AD v. Bulgaria,Footnote 63 where it was stated that if State authorities possess any information about abuse of the VAT refund system by a concrete entity, they can apply appropriate measures to prevent or stop such abuses by this entity and not by its counteragent in the absence of any indication of its direct involvement in such abusive practices.Footnote 64 The courts widely rely on the ECtHR’s stance as to inability for a company to secure compliance by its counteragent with its VAT reporting obligations while there is no fraud in relation to the VAT system of which a company had knowledge or the means to obtain such knowledge.Footnote 65
Application of the Court’s jurisprudence in criminal matters is less extensive, although there is, of course, a growing knowledge among judges about the Court’s interpretation of procedural guarantees under Article 6 of the Convention. Nevertheless, in an increasing number of cases, courts of appeal and cassation quash first-instance courts’ judgments because rights of convicts for legal representation or interrogation of witnesses were not sufficiently respected.
Some curious examples also take place. For instance, having found that a drug-related offence was provoked by police officers, one of the Ukrainian courts referred to the judgment in the case of Texiera de Castro v. Portugal, cited in the preceding text, and considered the fact of entrapment as a ‘mitigating circumstance’ for the purpose of sentencing.Footnote 66
It appears that with a turn from partly inquisitorial criminal process, existed in Ukraine prior to November 2012, into adversarial one introduced by the new Code of Criminal Procedure judges are more and more encouraged to apply the Convention in their daily work.
There is one more issue worth mentioning in this part of the chapter. The most problematic aspect in the Court’s jurisprudence for comprehension and use by Ukrainian judges is the requirement of proportionality of interference, inherent in the Convention. Several years ago my learned colleague Judge Angelika Nussberger wrote that ‘[t]he decisions of the Ukrainian Constitutional court are not yet as refined as to have resort to the proportionality test. As a rule, a large number of constitutional provisions are quoted to prove constitutionality or unconstitutionality without going into the details of interpretation’.Footnote 67 Proportionality test is completely unnatural for the Ukrainian legal system (as, in fact, for all postcommunist systems). Although the requirement to analyse proportionality of interference is contained in the Code of Administrative Justice, virtually no administrative court judgment with such an analysis can be found. The courts mostly restrict their examination of the case to the issue of legality of interference only, even when circumstances of the case and the Convention’s requirements clearly call for a further study if an interference was proportionate towards the legitimate aim pursued. It appears that more attention to this subject should be paid during numerous legal trainings.
8. Dissemination of the Court’s case law, teaching, and scholarship
It cannot be said that the Court’s jurisprudence is poorly disseminated in Ukraine. All judgments in cases against Ukraine are translated into the Ukrainian language and published in the official magazine issued by the Ministry of Justice. From time to time summations of the Court’s most important judgments on different topics are prepared by the legal officers of the high courts and distributed among judges. Numerous books and practical guidances to the Convention were published in Ukraine during past years. Major legal magazines devote their articles to diverse aspects of the Court’s case law.
One can hardly count all seminars, conferences, trainings, and study visits for judges, lawyers, and prosecutors that were devoted to the Court’s work and organised by different international and local bodies (including primarily the Council of Europe) during past fifteen years. These activities continue to attract many participants from all branches of the Ukraine legal system.
It worth mentioning that questions concerning the Convention and the Court’s case law form an integral part of exams necessary to pass for becoming a judge in Ukraine, as well as exams for admission to the bar. Further obligatory trainings also include this matter. The National School of Judges of Ukraine pays particular attention to judges’ awareness of the Convention. Obviously, this work cannot be exhausted and it is necessary to deepen the knowledge of Ukrainian lawyers about human rights and keep them posted on developments in the Court’s practice. But it is undisputed that an original ‘hunger’ for information on the ECtHR that existed some ten years ago is now satisfied.
The Court’s case law has also an impact on the legal scholars’ scientific interest. For the past years many doctoral theses were devoted precisely to the issues related to the Court’s jurisprudence and activity.Footnote 68
9. Concluding remarks
I would dare to argue that the most obvious influence of the Ukrainian presence in the Council of Europe and within the Court’s jurisdiction is a rise of a strong civil society. The recent events in Ukraine showed that it is capable now to bring the power to accountability using democratic procedures. In fact, the revolution of 2013–14 was mostly a struggle of a civil society against dictatorship and nepotism. But this capability to bring changes to the society, still suffering from vicious Soviet heritage with its complete disrespect to the rule of law, became conceivable following years of intensive work of Ukrainian NGOs using, among others, Convention mechanisms.
Various legal NGOs not only spread information among population on international mechanism of human rights protection, admissibility criteria, other particularities of application to the Court, and Court’s case law, but they also lobby execution of the Court’ judgments thus promoting implementation of the human rights standards.
The Ukrainian Helsinki Union, for instance, created the Strategic Litigations Center in order ‘to enforce the state, by means of national and international legal mechanisms, to adhere to high human rights standards’. The centre ‘brings together organizational and financial resources of non-governmental organizations, activists and lawyers in order to strengthen impact of strategic litigations and to change the situation in the country’. Cases that can potentially change legislation, administrative, or judicial practice in order to improve protection of rights and liberties are considered to be ‘strategic’ ones. Some of these cases were brought to the Court and gave rise to important Court’s judgments for the domestic legal order (e.g., the previously mentioned case of Vyerentsov v. Ukraine on freedom of assembly).
Being backed by the international human rights community and elated with many examples of successful litigation before the Court, Ukrainians draw inspiration to stand upon their rights from the very possibility to be heard by this most respected European judicial institution.
The Ukrainian legal system is still far from being perfect; it is eroded by contradicting legislation, long-standing flawed administrative practice, and high judicial corruption. Each Court’s judgment, however, and general measures to be subsequently implemented, is considered a ‘building block’ to this system, and the period of seventeen years after joining the Convention specified clearly not sufficient to overcome all flows inherited from the communist legal consciousness. Building of a State committed to rule of law is a long travel; we are moving towards this goal and a great deal had already been done. The ultimate objective of joining the European system of human rights protection is to form a democratic constitutional state in reality and not on paper. And a strong civil society, inspired by the Court’s standards, is the biggest Ukrainian achievement of being a part of the European family, particularly being under jurisdiction of the ECtHR.
