Why the ECtHR ceased to be Ukraine’s last hope for justice — Volodymyr Bogatyr

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The decision of the European Court of Human Rights based on the complaints of two former judges of the Constitutional Court of Ukraine cannot be called strange or unexpected. Motivation is not particularly interesting. It is unlikely that he will be quoted often in Strasbourg. However, several conclusions can be drawn from this case for Ukraine.

Dismissal for obviousness

In 2010, the Constitutional Court passed a decision (No. 20рп/2010 dated 30.09.2010) which annulled the amendments made to the Constitution in 2004, establishing that they were adopted in violation of the procedure. Accordingly, the previous version of the Basic Law came into effect.

But at the end of February 2014, the Verkhovna Rada adopted the Law “On the Restoration of Certain Provisions of the Constitution of Ukraine” (the same amendments of 2004). And in a few days – the Resolution “On responding to facts of oath violation by judges of the Constitutional Court of Ukraine.” One of the facts was the voting for exactly that decision, therefore, several judges of the Constitutional Court were dismissed by the People’s Deputies for violating their oath. Some of them tried to challenge the Decree of the Verkhovna Rada.

In particular, Vyacheslav Ovcharenko immediately appealed to the High Administrative Court and even received a decision in his favor already in June. It spoke of non-compliance with the principles of independence of the judiciary, recalled the norms of the specialized law that the judges of the Constitutional Court do not bear legal responsibility for the voting results, and also emphasized the violations of the dismissal procedure by both the Constitutional Court and the Verkhovna Rada. But following a complaint by the Parliament, the Supreme Court in December 2014 stated that the judge’s actions were clearly inconsistent with the oath he had taken, so the decision of the Supreme Court was annulled.

But Mykhailo Kolos was immediately rejected by the Court of Appeal, because at the time of the decision, the higher judges already had in their hands the position of superiors in the case of his colleague V. Ovcharenko. Attempts to complain to the Supreme Court also proved futile.

At the same time, the former representatives of the single body of constitutional jurisdiction applied to Strasbourg.

In Europe, they emphasized the extreme importance of assessing the adequacy of guarantees of independent and impartial consideration of applicants’ cases at the national level. In particular, the issue of functional immunity of judges (limiting the scope of legal responsibility for voting results) needed a detailed answer. It, the ECtHR is convinced, should not be silently rejected, but should be studied in detail.

Given the importance of the tenure of judges to the maintenance of the rule of law and democracy, a very detailed and clear justification of the constituent elements of “breach of oath” should be provided at the national level.

Since all this was not done, the decisions to dismiss the applicants cannot be considered sufficiently substantiated. Under these circumstances, the court in Strasbourg established a violation of Article 6 (right to a fair trial) of the Convention for the Protection of Human Rights and Fundamental Freedoms in terms of the applicants’ right to a reasoned decision in their cases (see the text of the ECtHR decision in the case “Ovcharenko and Kolos v. Ukraine” ( complaints No. 27276/15 and 33692/15 here).

So in the end justice was restored in Europe?!

Traditions of Ukrainian certainty

In order to give a full answer to this question, it is necessary to delve a little into the problems that caused the violation of the rights of judges of the Constitutional Court.

In the opinion of the ECtHR, it is unacceptable to punish and actually politically harass judges of the Supreme Court of Ukraine for solving a complex legal issue in the constitutional and legal dimension, which was also the subject of serious debates both in Ukraine and abroad, as noted by the Venice Commission and PACE.

And the lack of clarity and detailed explanations by the Verkhovna Rada has led to a situation of legal uncertainty, which is unacceptable, especially when it comes to a position in the court, which plays a decisive role in supporting the rule of law and democracy. The Verkhovna Rada in 2014 used its discretionary powers in a way that undermined legal certainty and jeopardized the legality requirement for the purposes of Article 8 of the Convention.

It is difficult to argue with this, at the same time it should be added that according to Article 151-2 of the Constitution of Ukraine, the decisions and conclusions adopted by the Constitutional Court of Ukraine are binding, final and cannot be appealed. Therefore, the Decision of the Supreme Court, for which the judges were dismissed, is valid to this day and is part of the current Constitution.

And this indicates that domestic justice no longer recognizes obvious principles, such as functus officio – the doctrine of exhaustion of the authority of the subject of decision-making, as one of the mechanisms by which the principle of finality is implemented in law. In judicial practice and jurisprudence, the doctrine of res judicata is recognized, which also affirms the importance of the finality of a court decision. Its value is undeniable for the developed legal systems of the world, and it is often used in the practice of the European Court itself.

But the Ukrainian parliament was allowed to go beyond its powers and evaluate the decisions of the Supreme Court and the actions of judges, which resulted in the compilation of the text of the Constitution. Because, as you know, not all of the 2004 reform was restored in the Verkhovna Rada.

Even the current speaker of the Verkhovna Rada complained without reason about the lack of a standard text of the Constitution of Ukraine! In his opinion, there is no single version of the Constitution of Ukraine that is understandable. Therefore, today the majority of lawyers and politicians use the electronic version of the Basic Law of Ukraine, the text of which is posted on the website of the Verkhovna Rada of Ukraine in the “Legislation of Ukraine” section. But this is a text compiled on the basis of official publications in the Bulletin of the Verkhovna Rada of Ukraine.

It is the systemic, end-to-end nature of the violations, multiplied by the chaotic reforms, that led to those consequences, which, with a scrupulous look, but through the fingers, are being considered by the ECtHR today.

It is seen that having discovered the nature of systemic violations, the European Court of Human Rights should have indicated in the pilot decision the measures that our state should take to eliminate them? But, unfortunately, this did not happen.

Then, if the ECtHR could not help Ukraine, limiting itself to a formal approach, maybe at least the applicants got justice?

Fair criteria

Let’s try to abstract from surnames and countries, and let everyone answer the following question. That two academic judges, at the top of their legal careers, had some authority and respect, were accused of perjury and dismissed, and were then betrayed by their colleagues at the highest level… that these two men, born in 1957 and 1953 gives a decision almost eight years after the application for protection?

And if we apply the fair trial approach to the ECtHR itself, it is quite possible to assume that the announced decision does not meet the criteria of Art. 6 of the Convention. After all, everyone has the right not only to a fair and public hearing of his case by an independent and impartial court, but also within a reasonable time.

Of course, the concept of “reasonable term” does not have a fixed numerical expression. It cannot be the same in all cases. But according to the practice of the European Court, reasonableness is determined by such criteria as the complexity of the case; behavior of procedure participants; the importance of the subject matter; the way authorities, in particular the court, exercise their powers.

What can be evaluated here? Difficulty is not an excuse. Yes, this case cannot be called simple, but thousands of other cases against Ukraine are considered plus or minus in the same way. Behavior – there are not so many ways to drag out the process in Strasbourg for its participants. The subject is extremely important, because it concerns the guarantees of judges (which was noted in the decision) and should be considered as soon as possible.

What remains is the court itself and its behavior. You can say, whatever you do, the ECtHR is overloaded with cases, in particular from Ukraine, which, among other things, has long been a leader in complaints!

But even here the answer can be found in the ECtHR itself.

Yes, in the matter “Zimmerman and Steiner against Switzerland” it was an excessively long (three years) proceeding in federal court. The reason for the delay was excessive workload. The number of cases has increased significantly, but not so much the number of judges. Although there were projects to correct the situation, there were also difficulties with reforming the system… The situation is familiar, isn’t it?

But the ECtHR was strict at the time: the Convention obliges Contracting States to organize their legal systems in a way that would enable courts to comply with the requirements of paragraph 1 of Article 6, including the requirement to conduct a trial within a “reasonable time”. At the same time, noted high judges, the temporary accumulation of unresolved cases does not lead to responsibility, if the state promptly takes measures to overcome such an emergency situation.

The methods that can be recognized as temporarily expedient, advised in Strasbourg, include the establishment of a certain order of consideration of cases, which depends not simply on the date of the initiation of the case in court, but on the degree of its urgency, importance and, in particular, the importance that the resolution of the relevant dispute shall be for the person(s).

However, if such a state of affairs takes on a long-term nature and becomes a problem of structural organization, such methods can no longer be considered sufficient, and then effective measures cannot be postponed.

***

But let’s return to Ukraine. There are indeed many important cases that have been waiting for consideration by the ECtHR for years. So, since 2015, a similar case of another judge of the Supreme Court, Nataliya Shaptala, has been pending.

And these cases, taking into account the collapse of administrative justice in Kyiv due to the liquidation of OASK, will soon become even more, but this is already a topic for a separate study.

It can be stated that the ECHR suffers from professional burnout and is no longer able to work fully. At the same time, the correct diagnosis is made. At most, there is a prescription and medicine. All that remains is the desire to recover.

Otherwise, what is the point of such an institution as the ECtHR, which in fact cannot ensure a fair trial.

Well, of course, one cannot reject the criterion of a unique attitude towards our country… I wonder how many years and how exactly a similar case about high judges from Germany or the United Kingdom would be considered in Strasbourg?

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