For what Ukrainians often judged with Ukraine in the ECHR

European Court of Human Rights published a report on its activities in the past year. Ukraine remains one of the leaders in the number of cases that considers the ECHR – from nearly 65,000 cases filed against 21.4% in Ukraine. On why the Ukrainians so often turn to the ECHR and why Ukraine does not comply with 90% of its decisions, said the executive director of the Ukrainian Helsinki Human Rights Union, Arkady Bushchenko lawyer.

Arkady, what has caused a number of complaints of Ukrainians to the ECHR?

AB Total last year, the European Court for Human Rights received 65 000 complaints, which are subject to review. Most Ukrainians complain to the ECHR – 13.85 thousand complaints, second only to Russia -. 9.2 thousand in the third Turkey -.. 8.45 thousand followed by Italy (7.55 ths.) And Hungary (4.6 thous.). By the way, if we take the ratio of the population and complaints to the ECHR, that on this indicator Ukraine is only the thirteenth place, and lead Hungary, Liechtenstein and Moldova.

A large number of complaints filed by the Ukrainians to the ECHR, can be attributed to several factors. Among the objective can distinguish the extreme imperfection of the legal remedies within the country. Subjective reasons include distrust of Ukrainians to the national courts, as well as the hope for a more just decision in the European Court. It plays a role and activity of our citizens, who often are suing the state, and not considering it a “sacred cow”.

What is the main reason for treatment of Ukrainians to the European Court?

ABMore than 90% of applications to the ECHR concerns non-enforcement related to social benefits. Here the problem is not even in the judicial system, and that in the habits of our authorities take populist decisions, establishing social security payments, which in the state budget can not afford. It’s an empty promise, unsecured economic development. And then no court can do nothing, because if there is no money in the budget, they are nowhere to take. As a result, we get a huge mass of applications to the European Court on this matter. The rest of the complaints relate to a variety of problems. This is a violation of the right to a fair trial, liberty and security, allegations of torture, inhuman conditions of detention in prisons, etc. Individual lawsuits related to the violation of the right to freedom of expression, freedom of association.

By the number of violations of human rights decisions rendered by the ECHR in 2015, Ukraine in fourth place (50 decisions per year). The first line is occupied by Russia (109 decisions), for her – Turkey (72) and Romania (72). How would you comment on these figures?

AB In fact, more than 95% of the complaints that come to the European Court of Human Rights from Ukraine, are eliminated at the stage of consideration of the admissibility and are not considered by the court. Because people complain about everything, and the Court has pretty strict rules and limited expertise.

As for solutions, at the European Court strongly “delayed” justice. I know of a record time of the complaint – 9 months, the biggest – 10 years. And the average period of consideration – 3-5 years, depending on the importance and urgency of the case. That is now the ECHR considers complaints that arrived long ago. So the first place Russia on the number of decisions rendered can be explained by a large number of “Chechen” cases, many decisions relating to Turkey, “Kurdish” problem.

Ukrainian Helsinki Human Rights Union in the last year conducted a study on the use of Ukrainian courts ECtHR judgments. And what are the conclusions?

AB We are long been dealing with this issue and are trying to promote the practice of the European courts in the national justice. We can say that the situation though and slowly but still improving – Ukrainian judges know the practice of the ECHR and its use. Maybe not as often as we would like, but progress is still there.

We have studied more than 850 thousand. Court decisions and chose 593 of these, where the European Court’s decision has been applied in accordance with the essence of the case, which was considered by a national court, and the content of that decision was distorted. Although, at first glance, it’s not a very high figure, but it’s still serious progress. We do not expect that every decision of Ukrainian courts will be referred to the Human Rights Convention or the ECHR decision, but we expect that this trend will continue.

Leader of the rating was the High Specialized Court of Ukraine for Civil and criminal cases. Next on the list – Shargorodskii District Court of Vinnitsa region, the Court of Appeal of Kiev, Kamenets city district court of Khmelnitsky region.

But Ukraine is not a country case-law …

AB true. But we have the Law “On execution of decisions and the application of the practice of the European Court of Human Rights”. And it says that judges are required to use the practice of the European Court as a source of law. We can say that we have a case law in relation to the ECHR decisions.

What part of ECHR judgments against Ukraine is not satisfied?

AB In the performance of ECHR judgments, there are three aspects. First – this is the payment of the amounts determined by the Court as fair compensation to the applicant. As a rule, such compensation shall be paid on time, except in rare cases when the amount is very large.

The second point – the so-called individual measures in favor of the applicant, intended to stop illegal situation and pay the consequences. For example, if a person has been unjustly convicted, the government should reverse this decision and allow him to fair legal proceedings. Or, say, if the question concerns the seizure of property, it must be returned to the owner. But there are solutions, the implementation of which requires financial costs, such as relocation to a safe area. The execution of such decisions are usually delayed because of funding problems and is accompanied by additional difficulties.

And the third aspect – it is a general measure which should prevent further violations of a similar type. In such cases, of course, for the execution of judgments of the European Court of the State should amend existing regulations or enact appropriate legislation. With this we are all very bad, because the performance of many general solutions requires fundamental reforms. Take, for example, the use of torture by the police – for the solution of this problem requires the reform of the prosecutor’s office, police, court.

In general, fully Ukraine does not comply with 90% of the judgments of the ECtHR.

Are there any sanctions on non-compliance with ECHR judgments? What this means for Ukraine?

AB In the worst case, may deprive Ukraine’s membership in the Council of Europe, which, in practice, I think it will never happen. It looks more likely to sanctions as deprivation of the right to vote or suspension of membership in the Council of Europe. There is also financial responsibility. For late payment of compensation, for example, provides for a penalty, the amount of which is fixed in the decision of the ECHR. Therefore, the state is trying to pay off in time.

Where should begin the reform of the judicial system?

AB Sometimes the impression I have, that the judiciary needs to be a certain period without reforms. Over the past 25 years she was constantly rebuild, reorganize, reform, but in the end it just collapses. It’s like planting a tree, and then every day it transplanted to another place, thinking that the way it will grow faster. Every new political elite is trying to adapt the judicial authority under its own interests. It will take some time to get accustomed to a judge to be independent. But this time never actually they did not. The judiciary has lived with an eye to the opinion of the president, parliament, and so on. D.

It continues a permanent reform of the judiciary, which now comes to radicalism to dismiss all judges score some new people to live three months without ships. Ostensibly this will solve all problems. If the reform of the judicial system will continue to be so, as of now, the number of Ukrainians complaints at the ECHR seriously increase. There is a great risk of a collapse of the judiciary, and when she did stop working, people will remain one way – to go to the European Court of Human Rights.

Interviewed by Elena Dospehova

Sourse, 02/02/2016