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A Thorny Road to Democracy, Human Rights and the Rule of Law: Ukraine and the European Court of Human Rights

In: European Convention on Human Rights Law Review
Authors:
Kanstantsin Dzehtsiarou Professor in Human Rights Law, University of Liverpool, Liverpool, United Kingdom, k.dzehtsiarou@liverpool.ac.uk

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Vassilis P Tzevelekos Senior Lecturer in Law, University of Liverpool, Liverpool, United Kingdom
Member of the UN Human Rights Council Advisory Committee, Geneva, Switzerland, v.tzevelekos@liverpool.ac.uk

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This issue of the European Convention on Human Rights Law Review is special because we are hosting as guest editorials the reflections of two Judges of the European Court of Human Rights (ECtHR or Court) elected in respect of Ukraine: the recently retired Judge, Ganna Yudkivska, and the newly elected Judge, Mykola Gnatovskyy. Their guest editorials view the impact of the ECtHR on Ukraine from the inside, as they both are highly qualified and heavily involved lawyers in the building of the legal order in Ukraine. In the lines that follow, we will try to present a view on the same topic written from the perspective of interested outsiders. To that end, we will attempt to discuss the challenges that Ukraine has been facing over the years and what the future might bring.

We shall start with the latter because, at the moment, the future of Ukraine is unfortunately quite uncertain. This is neither the fault of its authorities nor it is due to any sort of general ‘uncertainties of life’; quite the opposite, uncertainty owes to the unravelling of the ongoing, brutal and illegal war that Russia started with its aggression against Ukraine on 24 February 2022. We have already briefly discussed this in one of our editorials earlier this year.1 One needs to remember that the Russian war against Ukraine started in 2014 with the annexation of Crimea and with the support that Russia offered to separatism in the Donetsk and Luhansk regions of Ukraine; yet, the full-scale military aggression with the aim of occupying Kyiv, the capital of Ukraine, started on 24 February 2022.2

Just a few days later, on 28 February 2022, the Ukrainian authorities declared a derogation from the European Convention on Human Rights (echr or Convention) in accordance with Article 15 of the Convention.3 Referring to the martial law and to the armed conflict, the Ukrainian authorities derogated from a number of echr provisions, including Articles 4(3) (forced labour), 8 (right to private and family life), 9 (freedom of religion), 10 (freedom of expression), 11 (freedom of assembly and association), and 14 (prohibition of discrimination).4 Later, the Ukrainian authorities also derogated from Articles 5 (right to liberty and security), 6 (right to a fair trial), and 13 (right to an effective remedy).5 The Ukrainian authorities thereby have more leeway to restrict said rights. This does not mean, however, that the derogations render the rights to which they apply irrelevant or deprived of all their effects. Moreover, the so-called non-derogable rights, such as the right to life and the prohibition of torture, continue to apply during the war. This means that the ECtHR will have to deal with hundreds and hundreds of applications that are already reaching it by prisoners of war, by those who have been ill-treated, by those whose homes have been destroyed, and by the victims of rape, sexual abuse, murder, and looting. The majority of these applications will be directed against the Russian Federation. For instance, the Ukrainian authorities have already submitted an inter-state application against Russia related to the hostilities that began on 24 February 2022, but there will also be many more individual applications. Depending on the circumstances, some of these applications will be directed against Ukraine too.

It is not surprising that, on 28 February 2022, the government of Ukraine submitted to the ECtHR a request to indicate interim measures in relation to the armed conflict with Russia. The President of the Court agreed to indicate these measures on 1 March 2022. In the Court’s press-release the ECtHR indicated:

to the Government of Russia to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.6

Three issues are worth highlighting in relation to these interim measures. First, the Court decided to indicate these measures in relation to Russia only. This is a clear -and quite telling- departure from previous practice. Indeed, thus far, the Court would rather request both parties to a conflict to refrain from violating the echr.7 Second, the Court uses the language of international humanitarian law when it talks about ‘civilians and civilian objects’. For international human rights law it matters much less whether the victim is a civilian or not. Finally, in Georgia v Russia (ii),8 the ECtHR had purposefully restricted its jurisdiction over ongoing armed conflict, stating that:

the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no “effective control” over an area […] but also excludes any form of “State agent authority and control” over individuals.9

These interim measures might just be a sign that the Court is considering the revision of such standard. Indeed, the Russian aggression against Ukraine might invite the Court to further fine-tune its approach to jurisdiction during the active phase of war. Unlike the situation in Georgia, where such phase was short (ie, it lasted 5 days), hostilities in Ukraine are already continuing for more than 6 months and there is no prospect of them ending soon. This shall not mean that people experiencing the everyday horrors of war should be deprived of their protection under the echr: this is simply against the object and purpose of the Convention. The Court has already departed from (a rigid application of) the criterion of ‘effective control’ as a precondition for the echr obligations to apply extraterritorially, and the situation in Ukraine will call it to continue moving in the same direction and rely more on ‘cause-and-effect’.10

Returning to interim protection, on 4 March 2022, the President of the Court indicated the same interim measures in individual cases by those civilians who are:

taking refuge in shelters, houses and other buildings, fearing for their lives due to ongoing shelling and shooting, without or with limited access to food, healthcare, water, sanitation, electricity and other interconnected services essential for survival, in need of humanitarian assistance and safe evacuation.11

The third set of interim measures from the ECtHR in the context of this conflict was announced on 1 April 2022. The government of Ukraine asked the Court to request that the Russian Federation stop using certain types of weapons, cease attacks against nuclear power plants, and stop operations against Ukrainian civilian leadership. The ECtHR held that these requests are covered by the previously indicated interim measures. However, the Court accepted the request of the Ukrainian authorities to allow the evacuation of civilians to safer regions of Ukraine.12 We have discussed the effects of interim measures in one of our previous editorials.13 Whilst the interim measures at issue failed to end the Russian aggression or stop the hostilities that endanger human rights, they may be seen to have some (symbolic) value.14

The Ukrainian authorities will have to deal with the consequences of this war, which have an impact on literally all human rights of the people living in many parts of Ukraine. However, there are also pre-existing human rights issues, which might be exacerbated by the war and by the possible perception of lawlessness in the war-torn areas.

Leaving aside the unlawful -and at the level of international individual responsibility- criminal aggression by the Russian regime against Ukraine, and moving to the echr impact on the latter’s domestic legal system, both Mykola Gnatovskyy and Ganna Yudkivska point out in their guest editorial notes that there have been many achievements and improvements that the ECtHR case law has triggered within the Ukrainian legal order. Indeed, the Court seems to be a well-respected and weighty authority of legal interpretation in Ukraine. However, and this is also acknowledged by both Judges, there is a very long road for Ukraine to fully reach its potential and transform itself into a mature democracy where human rights and the rule of law prevail. Although the people of Ukraine have clearly chosen this road, this will be as thorny as it is for all polities and their peoples exiting authoritarian regimes or other types of (illiberal) governance; of course, the ongoing war is not helping.

Democracy is a political regime within which the role of an independent judiciary applying checks and balances is essential:15 judges are the guardians of the rule of law, of human rights and, in some instances, of democracy itself. Independent judges must be able to deliver decisions that the executive and the legislature are prepared to accept and comply with, even if they do not particularly like them. In this respect, we will selectively point out three important, but not exhaustive issues pertaining to the quality and the effectiveness of the function of justice within Ukraine that the Ukrainian authorities will have to address.

The first point concerns the institution and the correct application of proper legal processes for the appointment and the removal of judges, as well as, more generally, the establishment of safeguards of judicial independence. One of the most famous cases, that of Oleksandr Volkov v Ukraine,16 concerning the dismissal of a judge, highlights the importance of proper procedures.

The lack of respect of proper procedures presents itself in various relevant contexts, even when it comes to the election of the Judge of the ECtHR in respect of Ukraine. In 2022, the Parliamentary Assembly of the Council of Europe (pace) finally elected the best possible candidate as a new ECtHR Judge from Ukraine; yet, it took more than three years to reach this point, after the Council of Europe bodies repeatedly ‘returned’ to the Ukrainian authorities the lists with the three candidates for the post of ECtHR Judge submitted by Ukraine.17 This partially owes to the fact that the procedure within Ukraine for the nomination of the candidates kept changing and had to be changed again and again, with the previous list of candidates being sent back from Strasbourg each time. Instead of having a clear and transparent procedure within the domestic law, the framework for the nomination of the ECtHR Judge was designed anew every time.

The second issue that we wish to highlight is the quality of judging. It seems that the judicial system in Ukraine is constantly under reform, and although these reforms bear some fruit, some problems still persist. One of these problems relates to judicial reasoning. The quality of reasoning reflects the quality of judging. In one of the judgments, the ECtHR commented on the poor quality of the reasoning of a Ukrainian court, holding that the Supreme Court of Ukraine:

grossly misrepresented the Court’s findings in its judgment of 3 May 2007. In particular, the Supreme Court recounted that this Court had found that the domestic courts’ decisions in the applicant’s case had been lawful and well founded and that she had been awarded just satisfaction for the violation of the “reasonable time” guarantee, these being affirmations that are palpably incorrect.18

Such gross mistakes by the highest court in the country is a sign of poor quality, if not of a crisis. Of course, one can argue that this was done by the old Supreme Court of Ukraine which no longer exists, whereas new judges do not make similar ‘affirmations’. Although this might be true in part, it is important to remember that legacies like this tend to persist, as Judge Yudkivska highlighted in her guest editorial.

Finally, moving to the third point we wish to make with regard to the quality and the power of the judicial system in Ukraine, we shall note that even the most independent judicial system with the best drafted judgments cannot be effective if judgments are not duly executed. In his guest editorial, Judge Gnatovskyy mentions the judgment in Burmych v Ukraine.19 This case is a follow-up to the pilot judgment in Ivanov v Ukraine,20 concerning the inability of the applicants to execute final judgments of Ukrainian courts. Such persistent non-execution amounts to a violation of Article 6 (right to a fair trial). In Burmych, the Court decided to transfer 12,000 meritorious individual applications similar to the one in Ivanov to the Committee of Ministers without examining their merits. The logic of this judgment can be described as follows. The respondent state failed to comply with the pilot judgment for so long that dealing with the follow-up applications makes no difference for the situation in question because these repetitive individual judgments do not help to fix the root cause. One can argue that this judgment amounts to a ‘denial of justice’ as many of the applicants will not get their judgments after waiting for a very considerable period of time. At the same time, it is a brutal acknowledgment by the Court of the failure of the Ukrainian authorities to comply with a pilot judgment that the Court had delivered eight years earlier. After the war, the Ukrainian authorities will have to acknowledge these problems and duly remedy them.

These three examples of human rights issues are part of a longer list of issues that the authorities of Ukraine will have to address. In conclusion, we just wish to make three key points. First, although in Ukraine there were obvious human rights challenges and systematic incompatibilities with the echr standards, some of which pertain to the core of democracy and of the separation of powers, Ukraine was moving in the right direction and many ECtHR judgments were duly enforced and made the desired impact.21 Second, the war is clearly slowing the process of the alignment of the Ukrainian legal order with the echr standards, but also creating new human rights challenges whilst it jeopardises some of the achievements. This needs to be acknowledged, and even without the Article 15 echr derogations, the war and post-war conditions need to be taken into account by the Court. Finally, the war cannot justify everything. Although the protection of certain rights might not now be a priority for the government of Ukraine, there are still absolute rights which should not be sidestepped under any circumstances. The derogation from certain echr rights is not unconditional and proportionality continues to apply. All stakeholders should bear that in mind. The Court will have to deal with the alleged violations. The fact that they have taken place during the war makes them more difficult to examine, but at the same time even more important to adjudicate.

1

K Dzehtsiarou and VP Tzevelekos, ‘The Aggression Against Ukraine and the Effectiveness of Inter-State Cases in Case of War’ (2022) 3 European Convention on Human Rights Law Review 165.

2

P Kirby, ‘Why Has Russia Invaded Ukraine and What Does Putin Want?’ (bbc News, 9 May 2022): <https://www.bbc.com/news/world-europe-56720589>.

3

Council of Europe, ‘Note Verbale No. 31011/32-017-3 from the Permanent Representative of Ukraine to the Council of Europe Dated 28 February 2022, Transmitted to the Secretary General of the Council of Europe on 1 March 2022, Concerning Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ets No. 5)’ (2 March 2022) <https://rm.coe.int/1680a5b0b0>.

6

The full text of the decision is not officially published by the ECtHR. See, ECtHR, ‘The European Court Grants Urgent Interim Measures in Application Concerning Russian Military Operations on Ukrainian Territory’ (1 March 2022): <https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7272764-9905947&filename=The%20Court%20grants%20urgent%20interim%20measures%20in%20application%20concerning%20Russian%20military%20operations%20on%20Ukrainian%20territory.pdf>.

7

See, for example, interim measures in the context of Nagorno Karabakh conflict (ECtHR, ‘The Court Grants an Interim Measure in the Case of Armenia v. Azerbaijan’ (30 September 2020: <https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-6809725-9108584&filename=Court%27s+decision+on+the+request+for+interim+measure+lodged+by+Armenia+against+Azerbaijan.pdf>), or even interim measures previously indicated in the context of the conflict between Ukraine and Russia (ECtHR, ‘Interim Measure Granted in Inter-State Case Brought by Ukraine Against Russia’ (13 March 2014): <https://hudoc.echr.coe.int/eng-press?i=003-4699472-5703982>).

8

Georgia v Russia (ii) [gc] 38263/08 (ECtHR, 21 January 2021).

9

Ibid para 137.

10

See, among others, VP Tzevelekos and A Berkes, ‘Turning Water into Wine: The Concealed Metamorphosis of the Effective Control Extraterritoriality Criterion in Carter v. Russia’ (The echr Blog, 9 November 2021): <https://www.echrblog.com/2021/11/guest-post-turning-water-into-wine.html>.

11

ECtHR, ‘Decision of the Court on Requests for Interim Measures in Individual Applications Concerning Russian Military Operations on Ukrainian Territory’ (4 March 2022): <https://t.co/AwcJf6b9oQ>.

13

K Dzehtsiarou and VP Tzevelekos, ‘Interim Measures: Are Some Opportunities Worth Missing?’ (2021) 2 European Convention on Human Rights Law Review 1.

14

Ibid.

15

R Spano, ‘The Rule of Law as the Lodestar of the European Convention on Human Rights: The Strasbourg Court and the Independence of the Judiciary’ (2021) 27 European Law Journal 211.

16

The Government was invited to submit the list of three candidates on 14 June 2019. A number of attempts were made to submit, until the list was officially rejected by the pace in September 2022. Finally, the new Judge was elected on 26 April 2022.

17

Oleksandr Volkov v Ukraine 21722/11 (ECtHR, 9 January 2013).

18

Bochan v Ukraine (No 2) [gc] 22251/08 (ECtHR, 5 February 2015) para 63.

19

Burmych and Others v Ukraine [gc] 46852/13 and others (ECtHR, 12 October 2017).

20

Yuriy Nikolayevich Ivanov v Ukraine 40450/04 (ECtHR, 15 October 2009).

21

ECtHR. ‘Ukraine: Execution of the European Court of Human Rights’ Judgments. Main Achievements in Member States’: <https://rm.coe.int/ma-ukraine-eng/1680a186ca>.

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