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The Strasbourg Court and Ukraine: De Jure Pacis Ad Jus Belli

In: European Convention on Human Rights Law Review
Author:
Mykola Gnatovskyy Judge of the European Court of Human Rights, Strasbourg, France, gnatovsky@gmail.com

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While 2022 is far from over and is highly likely to bring more shock and distress, it is already obvious that this year has in many respects marked the end of an era in Europe.1 A fully fledged war of aggression and territorial conquest, waged by the largest country in the world against its neighbour, one of the biggest nations in Europe, brought to an unhappy end many ideas and practices, as well as many illusions underpinning them. One of the first to be shattered was the Council of Europe and its efforts aimed at creating a common European legal space of human rights, democracy, and rule of law from Lisbon to Vladivostok.

The ambitious project of integrating countries that had belonged to the ‘Soviet bloc’ or were parts of the former Soviet Union and assisting them to embrace liberal democratic values commenced in Strasbourg some 30 years ago. This project has not succeeded in ensuring the peaceful development of the entire continent. Instead, the time has come to protect the very foundations of the European civilisation embodied after the Second World War in the 1949 Statute of the Council of Europe and the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (echr or Convention). The unavoidable expulsion of the Russian Federation from the Council of Europe and its departure from l’espace juridique européen has only marked the beginning of this new era.

Joining the European Court of Human Rights (ECtHR or Court) at this juncture as Judge elected in respect of Ukraine is a mixed blessing – and, at the personal level, certainly not exactly what one could have possibly imagined when applying for the position over three years ago. The job in question has always required the utmost level of engagement and professionalism, but it also quite obviously demands an ability to change things and to respond to new circumstances. One can hardly imagine that the Court will remain the same in the coming years. It will have to change and adapt rather quickly – and the longer it takes, the more difficult it will be for the Court to maintain, let alone to strengthen, its place in the European institutional architecture. And certainly, it will have to deal with a very different Ukraine.

As a very new Judge, I am definitely not in a position to speculate about the future of the Court’s work in general. Nor would it be possible for me to express my views on the concrete applications lodged with the Court against Ukraine or on the inter-state ones submitted by the latter. Instead, I will use the kind invitation of the editors to share my thoughts about the role that the Court has played in Ukraine, the way that it has been seen in Ukraine, and to ask a few questions that might be relevant to shaping the future of the relationship between the Court and Ukraine.

If one were to judge merely by the sheer count of applications brought against it and the number of those where violations of the Convention have actually been found by the Court, Ukraine could only be considered as one of the worst ‘students’ in the Eastern European ‘class’ of young democracies. That said, such an approach would clearly be an oversimplification as other factors should be considered, such as the authority that the Court’s judgments have in the domestic legal system, the place of the Convention and its values in the dominant legal and political discourse in the country, as well as the public image of the ECtHR and the level of public trust in its judgments.

Let me deal now with the number of applications and of judgments where the Court has found one or more violations of the Convention. Leaving aside for a moment the armed conflict and cases related to it, the vast majority of judgments against Ukraine concern problems of a systemic nature related to the development of the legal system in the broad sense of the term, which comprises not only the laws but the practice of their implementation. Many of those problems are also related to the functioning of the judiciary in all aspects, from the appointment and dismissal of judges to domestic courts at various levels, to the execution of their judgments. There remains a significant number of issues with respect to the situation of persons for whom the state bears particular responsibility, such as those deprived of their liberty, predominantly (but not exclusively) in the context of delivering justice in criminal cases. These are in a sense the ‘infantile diseases’ of a legal system that aspires to grow into a fully fledged liberal democracy, namely the questions of its institutional maturity, professional culture, and the ability of the state to deliver on its promises and obligations. Some of these issues have been addressed in light of the Court’s judgments while others are yet to be resolved.

There are, of course, many other areas in which the Court has positively impacted the development of human rights, democracy, and the rule of law in Ukraine. The relevant factsheet prepared by the Department for the Execution of Judgments of the ECtHR of the Committee of Ministers of the Council of Europe provides pertinent examples.2

One of the relative success stories is the reform of Ukraine’s criminal procedure. An excellent combination of the profound expertise and experience in the matter by the national judge, professionalism of the Registry lawyers dealing with the subject, political will in Ukraine to reform the procedure, and strong expert support by the Council of Europe have resulted in a radical change of the legislation (notably the adoption of the 2012 Code of Criminal Procedure)3 and practices of its application. It would certainly be far-reaching to state that problems have been fully eradicated; however, the remaining ones pertain more to the situations where the new law was not duly implemented and applied. Moreover, the Court’s jurisprudence on Article 5, particularly the one specifically relevant for Ukraine, has become very well known by domestic courts and criminal defence lawyers, and is rather well embedded in practice. This, of course, does not exclude the possibility of new Article 5 issues arising from the detention of persons in relation to the armed conflict, but that is quite another matter.

While discussing the Court’s successes and failures in Ukraine, one cannot possibly omit the sad story associated with the 2009 Ivanov pilot judgment,4 concerning issues of prolonged non-enforcement of final decisions of domestic courts. This is a story of a pilot judgment not being implemented for years on end, which was exacerbated even further following a controversial Grand Chamber judgment in Burmych and Others5 in 2017, in which the Court, as described by the dissenting judges, transferred ‘the judicial responsibility on to a political body which unfortunately has so far had little impact on helping the respondent Government to properly execute the pilot judgment and to enact general measures’ – namely to the Committee of Ministers of the Council of Europe.6 Five years on, the issue remains far from being resolved. While the sentiment of the dissenting judges in Burmych is fully understandable, the underlying systemic problem can indeed only be solved through deep reforms of Ukraine as a state – something to be considered during the post-war development. It is an open question as to whether the ECtHR might be in a position to do anything more to help Ukraine deal with the issue or, as seems to be suggested in the above-mentioned dissenting opinion, to deliver justice to individual applicants regardless of the state’s inaction.

There is an obvious paradox in how the Court is perceived in Ukraine. The domestic legislation goes rather far in declaring not only that the Court’s judgments must be executed in full as regards both individual and general measures, but also that the judgments – irrespective of whether they concern Ukraine or any other party to the Convention – as well as the jurisprudence of the former European Commission of Human Rights, should be seen as ‘a source of law’ domestically.7 Even though one can be sceptical as to the extent of the real positive impact on the quality of decisions made by the domestic courts (which is a subject of a separate discussion), the attention to what the Strasbourg Court had to say and a desire to understand and use it in practice has always been present. That said, occasionally the respect for the Court’s judgment takes rather peculiar forms, such as the repeated proposals – luckily not materialised – to sanction in various ways those judges whose decisions were found to violate the Convention.

Ukraine’s strive for a society based on human rights, democracy, and the rule of law has had quite a lot of ups and downs over the quarter of a century of the country’s membership in the Convention system. After a significant leap forward in 2005 in the aftermath of the peaceful and successful ‘Orange Revolution’, in which the people of Ukraine defended their right to free and fair elections, a downward trend became evident following the 2010 presidential elections. Over the ensuing three to four years, there was a growing public discontent of the increasingly corrupt bureaucracy and a drastic decline in the public trust in the system of courts. While it is true that the Euromaidan protests originated as a response to the decision of Ukraine’s Cabinet of Ministers to suspend preparations for the signing of the Ukraine‑European Union Association Agreement,8 one should not lose sight of the fact that one of the major demands of the protesters related to the need for a complete overhaul of the judiciary, which was deemed to be hopelessly corrupt by most of the population. Another consequence of the Euromaidan protests was the cleansing of the public administration from the allegedly corrupt officials – and to say farewell, albeit with an enormous delay of more than 20 years since the collapse of the Soviet Union, to the repressive past.

It is, therefore, not surprising that the massive renewal of the state apparatus, commonly referred to as ‘lustration’ (Government cleansing), and a large-scale reform of the judiciary were initiated by the democratically elected parliament and the then new President of Ukraine. Given the political urge, the measures taken demanded difficult decisions, including the introduction of significant amendments into the country’s Constitution and the adoption of several major pieces of legislation. They also required a nuanced approach that should have taken into account the ECtHR’s standards concerning lustration laws, which had been developed with respect to other states that joined the Council of Europe in the 1990s,9 and the Court’s jurisprudence concerning the independence of the justice system and, in particular, the dismissal and appointment of judges – which has been one of the dominating topics in Strasbourg over the last several years.10

Conclusions of the Strasbourg judges as regards the ‘lustration’ can be best seen from the Court’s judgment in Polyakh,11 where the application of the so-called ‘Government Cleansing Act’ was found to be in violation of Article 8 echr. The Court’s analysis is particularly notable as it based its conclusions on the experience of lustration laws adopted by other East and Central European states, as well as on the analysis of the Venice Commission. While the Court underlines that, unlike the Venice Commission, it does not analyse the legislation in abstracto, it in fact did point to a number of dubious and unjustified provisions of the law and its sometimes excessively rigid application. This situation is remarkable as the Strasbourg Court has effectively done the job of Ukraine’s Constitutional Court, which had not spelled out its views, despite having been requested to do so several times by the Supreme Court of Ukraine and by members of Parliament back in 2014 and 2015. The Constitutional Court has not done so until now – unlike the Supreme Court, which has aligned itself with the ECtHR’s Polyakh judgment (published in October 2019) on the subject.12 It is also important to note that the Strasbourg Court’s criticism of the law has not provoked any significant voices of discontent from politicians and civil society in Ukraine – yet another manifestation of the high level of respect that the Court enjoys.

The Court’s authority has also been an important factor in assessing the compliance of the post-Euromaidan reform of the judiciary with the Convention requirements. In particular, the fate of judges of the former Supreme Court of Ukraine who were prevented from exercising judicial functions was dealt with by the Strasbourg Court after the Constitutional Court of Ukraine had spoken on the matter and decided in favour of those judges. In the case of Gumenyuk,13 the Court supported the conclusions of the national Constitutional Court by finding violations of Article 6(1) (access to court) and Article 8 (respect for private life) as regards the specific group of the applicants. In other words, it aimed to reinforce the domestic constitutional justice while providing a balanced analysis of the extraordinary measures resorted to by Ukraine’s legislative power to restore trust in the domestic courts.

The examples of the lustration law and the judicial reform might shed some light on the future role of the Court to guard democracy and human rights in Ukraine, whose state institutions and the society have been severely traumatised by the Russian Federation’s egregious war of aggression. The Strasbourg Court will have the weightiest word as regards any limitations of human rights and fundamental freedoms imposed by the state before, during, or after the war. Ideally, their assessment should go hand in hand with Ukraine’s courts – especially the Supreme Court and the Constitutional Court.

The authority that the Convention machinery enjoys in Ukraine requires constant attention and support. One of the important factors here will be how the Court manages the war-related cases, in particular, the inter-state applications, especially in the absence of the Russian Federation among the member states of the Council of Europe. Public expectations in Ukraine and elsewhere in Europe are high, and living up to them is a crucial task for the ECtHR. After all, the Court possesses the required resources and jurisdiction. It has everything to prove that international justice can be timely and effective, and that in the struggle between the European civilisation, which is based on international law and on human rights, and authoritarian rulers raving geopolitics, it is our common democratic Europe that will prevail.

In turn, the Court’s work remains key in helping Ukraine’s authorities to align their legal system to the standards of human rights, democracy, and the rule of law. Doing so is a long ongoing process, and Russia’s war of aggression shall not stop it. Ukraine is fighting for its existence as a sovereign nation which is determined to become a full member of the European family, and no army, no atrocities, and no cost – material and even human – can stop this. Russia’s war of aggression against Ukraine is a war of an autocracy against a people who fully embrace the values that underpin the Council of Europe and the echr. The Court’s role in helping Ukraine stay on the right track cannot be overestimated.

1

De jure pacis ad jus belli is Latin for: ‘from law of peace to law of war’ (author’s translation).

2

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

3

Code of Criminal Procedure of Ukraine (Кримінальний процесуальний кодекс України). Відомості Верховної Ради України, 2013, № 9–13, ст 88. For an English translation, see: <https://rm.coe.int/16802f6016>.

4

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

5

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

6

Ibid. Joint Dissenting Opinion of Judges Yudkivska, Sajó, Bianku, Karakaş, De Gaetano, Laffranque, and Motoc, para 1.

7

On the Execution of Judgments and Application of Jurisprudence of the European Court of Human Rights, Law of Ukraine, 23 February 2006, section 17.

8

For the Court’s assessment of the events and various violations of the echr in connection with the EuroMaidan protests, see, five judgments adopted on 21 January 2021: Shmorgunov and Others v Ukraine 15367/14 and others (ECtHR, 21 January 2021); Lutsenko and Verbytskyy v Ukraine 12482/14 and 39800/14 (ECtHR, 21 January 2021); Kadura and Smaliy v Ukraine 42753/14 and 43860/14 (ECtHR, 21 January 2021); Dubovtsev and Others v Ukraine 21429/14 and others (ECtHR, 21 January 2021); Vorontsov and Others v Ukraine 58925/14 and others (ECtHR, 21 January 2021).

9

See, for example, Turek v Slovakia 57986/00 (ECtHR, 14 February 2006); Sõro v Estonia 22588/08 (ECtHR, 3 September 2015); Karajanov v The Former Yugoslav Republic of Macedonia 2229/15 (ECtHR, 6 April 2017).

10

See, Oleksandr Volkov v Ukraine 21722/11 (ECtHR, 9 January 2013); Denisov v Ukraine [gc] 76639/11 (ECtHR, 25 September 2018); Xhoxhaj v Albania 15227/19 (ECtHR, 9 February 2021); Guðmundur Andri Ástráðsson v Iceland [gc] 26374/18 (ECtHR, 1 December 2020); Xero Flor w Polsce sp. z o.o. v Poland 4907/18 (ECtHR, 7 May 2021), and so forth.

11

Polyakh and Others v Ukraine 58812/15 and others (ECtHR, 17 October 2019).

12

The Supreme Court [of Ukraine] (Grand Chamber). Judgment of 09.09.2020 in case No 809/1649/15 (in Ukrainian): <https://reyestr.court.gov.ua/Review/91680868>.

13

Gumenyuk and Others v Ukraine 11423/19 (ECtHR, 22 July 2021).

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