Twenty years ago, in September 1997, the European Convention on Human Rights (ECHR) entered into force for Ukraine. By ratifying the Convention, Ukraine recognised the compulsory jurisdiction of the European Court of Human Rights (ECtHR). While Ukraine had been a party to a number of the international human rights instruments, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, long before the ECHR, joining the ECHR had a special significance. It symbolised a European choice of Ukraine, a final breakaway from the Soviet past, and (at least on paper) the acceptance of the European values of democracy and respect for human rights. Making the determination to join the Council of Europe (CoE) and its fundamental legal instruments, however, was easier than to maintain Ukraine’s international obligations in practice. In fact, there had been times when the CoE seriously considered to terminate the membership of Ukraine altogether (in 1999, for example, for the failure to abolish the death penalty).
This post will not cover all the intricacies of the complex (and at times turbulent) relationship between Ukraine and the CoE. We will start with a brief review of the statistics regarding the current situation, in particular the ECtHR case law concerning Ukraine. Then, we will focus on the reasons why Ukraine is still one of the laggard states in terms of the numbers of applications and violations to the ECtHR. Further, we will discuss the impact of the ECHR and the ECtHR case law on the Ukrainian legal system, highlighting some positive examples. We will also analyse a somewhat surprisingly optimistic attitude towards the Court prevailing in Ukraine, especially in the context of a growing anti-Strasbourg sentiment in a number of the CoE states. We will conclude our post with examining why Ukraine needs to do more in terms of the implementation of the ECHR and why it is important to the ECtHR that Ukraine succeeds in these efforts.
It is true that, since the adoption of the ECHR, Ukraine has had a high number of applications directed against it. As of 1 July 2017, there are 19,166 applications in total pending against Ukraine before the Court, which constitutes more than 20% of total applications before the ECtHR. The number of applications, however, increased exponentially starting in 2013 (which coincides with the events of the EuroMaidan protests), when the applications almost doubled in comparison with the previous year (7,791 applications — in 2012; and 13,132 — in 2013). In 2016, the number dropped to 8,658 applications, which still puts Ukraine on the first place based on the number of applications (followed by Turkey, Romania, Russia, and Hungary). The President of the Supreme Court of Ukraine stated, generalising somewhat, that the majority of the applications in 2016 concerned the prolonged non-enforcement of final domestic decisions (65%), the property losses in Eastern Ukraine as a result of the hostilities (22%), and the dismissal of the civil servants based on their vetting (most of the rest of the applications).
Apart from the skyrocketing numbers of applications, Ukraine is also one of the top ‘violators’ of the ECHR. Almost 6% of all ECtHR judgments concerned Ukraine, and in 98.76% of them Ukraine was found at least in one violation of the Convention. The majority of violations concern the right to fair trial (45%), protection of property (30%), the right to liberty and security (23%), and the right to an effective remedy (18%).
Why Such High Numbers of Applications and Violations?
(1) Failure to Deal Effectively with Repetitive Cases
The high number of applications does indicate the existence of a large amount of the ECHR violations. The case law demonstrates that the majority of violations is found in the repetitive cases that require structural reforms in criminal justice, judiciary, the army, and the asylum system. The ECtHR has identified these structural problems and suggested the national measures for Ukraine in a number of pilot and ‘quasi-pilot’ judgments, including in Yuriy Nikolayevich Ivanov v Ukraine, Kharchenko v Ukraine, Kaverzin v Ukraine, Vyerentsov v Ukraine, and others.
Regrettably, Ukraine has not made much progress in adopting the measures required by those judgments, which prescribe both updating the legislation and ensuring its effective implementation through changes in the judicial and administrative practice. Although the adoption of new legislation would appear less challenging than transforming the existing practice, some of the legislative changes have taken an excessive amount of time owing to the protracted political turmoil and the lack of political will. An illustrative example of this can be the prolonged absence of the effective remedy to secure adequate redress for non-enforcement of domestic judgments, which lays behind the most frequent violations of the ECHR by Ukraine. This fact was highlighted by the ECtHR in the 2010 pilot judgment Yuriy Nikolayevich Ivanov v Ukraine. Ukraine was supposed to adopt general measures to tackle this issue within two years, but failed to do so. Only in 2016, the Ukraine’s Parliament managed to adopt two laws, introducing private bailiffs and streamlining the enforcement proceedings, which might improve the situation with the non-enforcement of domestic judgments.
(2) Translation Issues with the ECtHR Case Law
With the adoption in 2006 of the special Law on the Enforcement of Judgments and Application of Practice of the ECtHR (the 2006 Law), the Ukrainian judges and state officials refer to the ECHR and the ECtHR case law rather frequently. The 2006 Law inter alia provides for the ECHR and the ECtHR case law being the ‘sources of law’ that should be applied by the Ukrainian courts (Article 17). The reference to the ECtHR case law, nonetheless, happens not always, with insufficient analysis, and frequently incorrectly (see the discussion in Ganna Yudkivska’s piece here pp 461–462). The wording of the 2006 Law leads to the ambiguity on whether the domestic courts are obligated to use the ECtHR judgments in the cases where Ukraine is not a party. According to the 2006 Law only the judgements against Ukraine must be translated into the official language [Ukrainian] and published by the state authorities (Articles 1 and 6), which leaves the other ECtHR case law not properly ‘promulgated’ according to the law (see Article 57(2) of the Ukrainian Constitution, para 7 of the Review of the Supreme Court of Ukraine Practice, and the respective Decree of President of Ukraine). As a result, some argue (incorrectly, we believe), that the Ukrainian courts should consider exclusively judgments in the cases against Ukraine. Such an interpretation has given rise to the inconsistencies in the court practice.
Even if the broader interpretation of Article 17 prescribing the application of all the ECtHR case law prevails, in reality most of the Ukrainian judges, lawyers, and prosecutors are not fluent in the official languages of the ECtHR and thus unable to make use of the bulk of the Court’s jurisprudence. The issue is not unique to Ukraine. The ECtHR has already launched a case-law translation programme, which makes the Convention standards more accessible for the Ukrainian judges and state officials. The Government Agent of Ukraine before the ECtHR has even suggested the development of the Ukrainian version of the HUDOC, but it is unclear when this project materialises. Until then, the lack of translation frequently leads to the disregard of a significant part of the ECtHR jurisprudence and the incorrect interpretation of the ECHR.
(3) Lack of Trust in the Domestic Judicial System
In 2015, a public opinion poll indicated that 81% of Ukrainians show distrust in the domestic courts. At the same time, 19% of the population consider the ECtHR the most effective remedy for protection of human rights, with the number reaching 31% in Donbass (see the 2017 nationwide study on human rights in Ukraine). Even the top state officials have used the ECtHR as the ultimate remedy, circumventing the domestic judicial system (see e.g. Tymoshenko v Ukraine, Lutsenko v Ukraine, Volkov v Ukraine, and reportedly soon Saakashvili regarding the loss of his citizenship). Despite the suggestions by some authors that the ECtHR is (or should become) a constitutional court of Europe, what is happening in Ukraine is going even further than that, turning the ECtHR into a full-fledged trial court. This is an intolerable situation both for the ECtHR and Ukraine, since the states are the ones that have a primary responsibility to ensure respect for the human rights established in the ECHR.
To deal with this issue Ukraine has set up a major judicial reform by adopting the amendments to the Constitution and four new laws (see a brief discussion on the judicial reform in Ukraine here and here). One of the goals of the reform is to ensure independence and effectiveness of the judiciary, and ultimately regain the people’s trust in the domestic judicial system. Whether it will result in a decrease of the number of the applications to the ECtHR and the violations of the ECHR, however, will be possible to assess not earlier than in 2018, at the final stages of the reform.
(4) Armed Conflict in Eastern Ukraine and Annexation of Crimea by Russia
The ECtHR confirmed that it received around 3,700 individual applications related to the events in Crimea and the hostilities in Eastern Ukraine against Ukraine and/or Russia (as of June 2017). The number of the applications will only increase with the prolongation of the armed conflict. Clearly, domestic remedies should be created, as much as possible, to provide effective relief to the persons who have suffered from the armed conflict. That said, the tendency of bringing claims arising from an international armed conflict to the international (European) level is quite predictable, even though the ECtHR has not been designed to deal with floods of applications coming from victims of war.
Positive Changes as a Result of Ukraine’s Accession to the ECHR
Ukraine’s accession to the ECHR has brought about many positive developments in the domestic legal system. Above all, the ECHR had a direct influence on the 1996 Ukrainian Constitution, which was being drafted at the time of the negotiations on joining the CoE. As a result, many of the Constitution’s provisions, in particular Chapter II, drew directly from the Convention. This was, for instance, highlighted by the Ukrainian Constitutional Court in its landmark decision on the abolition of death penalty, particularly with regard to Article 28 of the Ukrainian Constitution, which ‘reproduces the provisions of Article 3 of the ECHR’ (Decision № 11-рп/99 of 29 December 1999 para 6). Furthermore, the Convention has been an underlying factor for the large-scale legal reform carried out in direct cooperation with the CoE. One of more recent examples would be the 2012 Code of Criminal Procedure, which is also often credited to the ECtHR case law and the pressure from the CoE (see Yudkivska p 487), as well as the ongoing judicial reform.
Attitude towards the ECtHR and Heightened Expectations
The attitude of Ukraine and the Ukrainians towards the ECHR and the Court is positive, which might come as a surprise at a time of a growing anti-Strasbourg sentiment elsewhere in Europe (see e.g. the instances of direct challenges by a number of states to the authority of the ECtHR here).
The inter-state applications against Russia related to the events in Crimea and Eastern Ukraine are the main reason why Ukraine is so hopeful towards the ECtHR (there are currently five inter-state applications, discussed here and here). The Ukrainian Government’s optimism appears to be based on the assumption that the Court would rule in Ukraine’s favour. In that event, even if the Russian authorities refused to execute the judgments (not an unlikely development, see for example the discussion of Anchugov and Gladkov v Russia and YUKOS v Russia here and here), Ukraine would gain political support of the international community, and — as the Minister of Justice of Ukraine put it — would ‘set the historical record straight’ (see the press conference organised by the Ministry of Justice of Ukraine).
Furthermore, embracing the ECHR values is largely associated in Ukraine’s public discourse with the EuroMaidan events, the 2014 EU–Ukraine Association Agreement, the visa free regime, and the broader EU membership aspirations. In fact, the 2014 Association Agreement establishes human rights and fundamental freedoms defined by the ECHR as the essential elements of the agreement (Article 2).
Why Ukraine Should Do More?
Taking the ECHR and the ECtHR case law not seriously enough comes at a price for both the ECtHR and Ukraine. The ECtHR is overwhelmed by the excessive caseload from Ukraine, which undermines the long-term effectiveness of the Court. Ukraine bears enormous social costs, including for paying the satisfaction for violations (around 20,5 million Euro only in 2016) and reputational damage. More generally, having more effective, fairer judiciary, law enforcement, and political system, apart from improving Ukraine’s business environment and economic prospects, will have huge non-material benefits for the society and bring it closer to the long-sought European integration. The persistent non-compliance with the ECtHR judgments, conversely, may lead to the infringement procedure, the inter-state applications against Ukraine for the systemic violations of human rights, or the state responsibility under general international law.
Any views expressed in this post represent the authors’ own views and not those of the organisations for which they work/worked or in which they are members.