The Future of the European Court of Human Rights: A View from Ukraine


Ministers from the 47-members of the Council of Europe are in Brighton, England this week to discuss the future of the European Court of Human Rights. Let us hope that amid the clamor of Britain’s own internal debates over the role of the court, and Britain’s wider role in Europe, the delegates can still hear the voice of those in countries such as Ukraine, who really do so often pin their last hopes for justice on the court in Strasbourg.

Ukraine has one of the highest rates of prisoners per head of population in Europe. It has a steadily falling acquittal rate, this reaching a pitiful 0.2 per cent of all court rulings in 2011. Any illusions that this high rate of convictions is due to its efficient police force and prosecutor’s office will be swiftly dispelled by reading the latest reports on Ukraine’s criminal justice system from the European Committee for the Prevention of Torture, or from Amnesty International.

“Confessions” are regularly beaten out of detainees, and may quite simply be the only evidence against a person. In recent months a man was released from prison after 8 years because it became clear that a convicted serial killer had committed the murder he had “confessed” to. Maxim Dmytrenko was one of 10 people who at various times were convicted of crimes committed by that same killer.

Yakiv Strogan was arrested after publicly alleging over almost four months that he had been tortured by police officers. The prosecutor refused to initiate criminal proceedings against the alleged torturers, but after the latter arrested Strogan and charged him with attempted murder over an incident four months earlier, the judge saw no need for questions. Nor did the judge ask about the clear signs of beating following a night in police custody. Strogan spent 14 months remanded in custody, and the trial is still continuing.

Would David Cameron, the UK prime minister, argue that such domestic court rulings need to be treated “with respect”? More importantly, would he and those other “high-level officials” in Brighton feel confident about taking any steps that may reduce the chances for those like Strogan and thousands of others of seeking justice in Strasbourg?

The recent uproar in Britain over the proposed deportation of Abu Qatada to Jordan to face terrorism charges was seen as a sign of the failure of the court by its conservative critics. But that judgement was based on the fundamental principle that people must not be sent back to places where their lives may be in danger or where they cannot hope for a fair trial. The European Court’s stand on this has prevented more than one irrevocable miscarriage of justice when Russian authorities endeavored
to deport people to Uzbekistan on seriously flawed grounds.

Such cases are legion. Not all by any means reach the European Court of Human Rights, but many do. The right of individuals’ to such legal defence must not be diminished.

Over the last two years Ukraine’s judicial system has been seriously compromised, with increased pressure on the courts via legislation and practice making words about judicial independence seem especially hollow. Nor is Ukraine the only country in the post-Soviet realm where the courts, together with the law enforcement bodies, are increasingly being used by those in power against opponents and thus in ways which have nothing in common with the rule of law.

Reform is certainly needed, but it must strengthen the legal defence the Court provides, not narrow its scope. The measures presently suggested include limiting to 4 months the timeframe for making applications, and a stronger emphasis on the principles of “subsidiarity” and margin of appreciation. Obviously the Court in Strasbourg should be the last resort when all other remedies have been exhausted. This is already clearly stipulated in the rules of the Court, adding weight to suspicions that any additional “subsidiarity” would effectively mean restricting the Court’s jurisdiction. The same national courts would have greater freedom to determine the “margin of appreciation” when adapting the European Convention’s demands to their own country. There seems little reason to doubt that most states would opt to make this “margin” exceedingly elastic.

It is probably true that the ECHR is scarcely noticed in the UK except when certain judgments arouse angry responses from the government and vitriolic articles in the tabloid papers. In contrast, all its rulings regarding Ukraine play an inestimable role, by identifying serious flaws in domestic legislation and practice.

The importance of a strong and efficient European Court of Human Rights for Ukraine and other post-Soviet countries has never been greater.

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