Searching for judicial justice: Would ECHR help?

Author : Iryna Shostak

Source : 112 Ukraine

From year to year, Ukraine keeps three top position in the list of countries with the largest number of cases pending before the European Court of Human Rights
13:28, 2 April 2021

Much can be said about the disappointment and indignation of Ukrainians with the judicial system of our country. And you can look at the statistics on filing complaints with the European Court of Human Rights (ECHR). 14,000 out of 65,00 appeals belong to the Ukrainians. That is, every fourth complaint comes from Ukraine.

Related: Ukraine files ninth complaint to ECHR against Russia, - official

From year to year, Ukraine keeps three top position in the list of countries with the largest number of cases pending before the ECHR. This is where, it turns out, our stability was "hiding". It's just a pity that there is nothing to be proud of in this case.

But before the statement gets to Strasbourg, its author must successfully go through several circles of bureaucratic hell. The procedure for going to court requires a certain level of legal literacy from a person. Firstly, the plaintiff, before applying to the ECHR, must go through all instances of the national Ukrainian courts (court of the first instance, appeal, and cassation).

"This is necessary in order to exhaust all means of national protection of their interests. Only after that, the citizens have the opportunity to apply to the ECHR," lawyer and expert on international law Yevhen Ogarkov says.

Secondly, in order to correctly submit an application, you need a professional translator, as well as a specialist in jurisprudence. Why is it so important? According to statistics, more than 90% of requests are eliminated and considered inadmissible for consideration. The level of preparation is vital to promoting your application. So important that only every tenth case comes into consideration.

Related: Ukraine to elect its judge to ECHR through new competition

“As a specialist, I can say that cases that a person prepares individually usually end up at the level of some technical failures and nothing come of it. Therefore, in order to avoid basic mistakes (which are not so obvious for a “non-lawyer”), you need to turn to professionals for help, "the expert emphasizes.

Subject to proper registration, the chances of winning the country that violated your rights in the ECHR are quite significant: four out of five applications that were accepted by the court are upheld.

And the last bastion is the price. It is not cheap to file a complaint with the European Court of Human Rights: court fees, legal assistance from Ukrainian lawyers who represent interests in Europe, or lawyers based there, and much more.

It is not surprising that when unscrupulous participants in a trial "negotiate" with judges, for a number of Ukrainians the European Court seems almost a "sacred cow."

In most cases, the ECHR takes the side of the Ukrainians. Moreover, according to the court's report, out of all 86 decisions that the court made against Ukraine last year, in 95.3% of cases, at least one violation of the Convention for the Protection of Human Rights and Fundamental Freedoms was found.

One way or another, but even if your application is considered by the ECHR and, moreover, a decision is made in your favor, it is not guaranteed that Ukraine will comply with it.

A simple example: complaints about non-fulfillment of the country's obligations on social benefits.

Only one-tenth of all the appeals of our citizens concerns violations of the right to a fair trial, to liberty and security of person, to inhuman conditions of detention in places of detention, to free expression of opinions.

But 90% of the requests refer to the most painful topic for the Ukrainian budget - social.

According to the State Treasury, as of March 5, 2021, the state's debt on court decisions, the execution of which is guaranteed by the state, amounts to 180 million USD. At the same time, only 3,6 million USD was allocated in the state budget for 2021 for the budget program for the implementation of court decisions guaranteed by the state, including on social affairs.

Related: Navalny’s lawyers appeal to Council of Europe over non-execution of ECHR’s decision

This state of affairs does not suit the parties to the Convention on Human Rights. In the fall of 2020, the Committee of Ministers of the Council of Europe once again stated that Ukraine has not yet resolved the problem of non-compliance with court decisions on social benefits. They noted that with the current level of execution of court decisions of 2.6%, Ukraine cannot guarantee judicial protection and effective access to justice.

"Ukraine does not fully comply with 90% of the decisions of the ECHR," said Arkadiy Buschenko, executive director of the Ukrainian Helsinki Human Rights Union, in an interview.

The fact is that in addition to compensating the plaintiff and restoring justice in a particular case, measures of a general nature must also be taken to prevent further violations of this type. Most often - to make changes to existing regulations or to adopt relevant laws.

If compensations are most often paid on time, except in cases where the amount is really very large, then everything is not so simple with regard to changes in laws. The Cabinet of Ministers, as the subject of legislative initiative, must generate these documents and submit them to the Rada. There the initiative should be considered at the committees, then it should be recommended to be submitted to the session hall, where the deputies with their entire constitutional composition should vote for the bill, first in the first reading, then in the second reading. Then the signatures of the chairman of parliament and the president are also required. Since most of the decisions of the ECHR relate specifically to changes in legislation, even the machine of European justice in Ukraine is stalling.

And what next, where to go in such cases? Nowhere. The ECHR is the endpoint. It remains to wait for reforms.

Related: ECHR accuses Yanukovych's government of human rights abuses during Maidan protests

According to lawyer Yevhen Ogarkov, the fact that Ukraine, as a state, has recognized the priority of international law over national law is already a great achievement of democracy. For example, Russia recently adopted a special bill to abolish the priority of international law. That is, there is a possibility for Russians to apply to the ECHR, but there is no sense in this since Russia refused to comply with these decisions.

Unfortunately, the number of unresolved cases does not radically affect the country's reputation in the international arenas. Of course, in theory for Ukraine, frequent disregard for the decisions of the ECHR may be fraught with deprivation of membership in the Council of Europe (which in practice, according to experts and, in particular, Arkadiy Buschenko, will never happen).

Sanctions seem more likely: deprivation of the right to vote or suspension of membership in the Council of Europe. But then it will "arrive" not only to us. Indeed, in addition to Ukraine, Romania, Italy and Turkey appear in the list of violating countries. Moreover, if we take the ratio of the number of population and complaints to the ECHR, then according to this indicator we are only in 13th place (Hungary, Liechtenstein, and Moldova are in the lead).

On the other hand, each failure to comply with the decision of the international court is a “bell” for the people, as for the bearer of sovereignty and power in the state. We can draw certain conclusions and assess the effectiveness of the team that is now “at the helm” of the country.

Related: Ukraine on ECHR decision on Crimea: Russia’s responsibility to grow with each such step

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