Commentary by Iryna Kuzina, an attorney at BARRISTERS Law Firm, on the topic: "Errors and Abuses: How ECHR Rulings Are Manipulated in Ukrainian Courts"

Errors and Abuses: How ECHR Rulings Are Manipulated in Ukrainian Courts

Lawyers and judges manipulate rulings of the European Court of Human Rights. Most often, this is done inadvertently, though there are also cases of deliberate abuse. To address this situation, the Supreme Court has begun reviewing the latest ECHR rulings. This is intended to establish a uniform legal practice in Ukraine and reduce the number of diametrically opposed rulings.

“KRAPKA” investigated why this is happening and, most importantly, how this “modernization” benefits ordinary Ukrainians.

The Most Interesting Rulings—Every Week

According to the Supreme Court, it will now publish a weekly Ukrainian-language digest of the most important rulings issued by the ECHR.

“These summaries will contain key information regarding cases pending before the ECHR, including details of the court’s rulings. Reviewing these summaries will allow representatives of all legal professions to track developments in the application of the Convention for the Protection of Human Rights and Fundamental Freedoms and will help improve the state of human rights compliance in Ukraine,” the Supreme Court’s press service stated.

The first review, covering January 2019, contains information on 16 decisions issued by the ECHR in cases involving citizens of various countries (Malta, Germany, the Russian Federation, Uzbekistan, Turkey, Switzerland, etc.).

For example, the court considered a complaint filed against Turkey by a Turkish family regarding an article about them published in a newspaper. According to the plaintiffs, the publication violated their right to respect for private and family life. However, the ECHR concluded that no such violation had occurred.

However, in the case of a woman from Italy who complained of ill-treatment during court proceedings, the ECHR reached a different decision. In 2007, a police officer struck her on the head. The woman complained that she had been subjected to severe psychological pressure, which forced her to speak against her will. The court found that two articles of the Convention on Human Rights had been violated: the prohibition of torture and the right to a fair trial.

Many Ukrainians may find interesting the ruling in favor of Italian citizens who accused local authorities of failing to respond to harmful air pollution
caused by a metallurgical plant. Specifically, officials were accused of concealing information about the extent of environmental pollution and the risks to public health.

In Ukraine, this ruling may be significant for residents of cities such as Mariupol, Zaporizhzhia, or Kryvyi Rih, who suffer due to the lack of air purification filters at steel mills.

Decisions are published in English. Sometimes they are also posted in other languages, but English versions are eventually published as well.

Judges Against the “ECHR Craze”

ECHR rulings should serve as a model for Ukrainian courts in cases involving human rights (as well as legal entities under private law). However, some judges say that attorneys have begun to overuse references to European case law.

A journalist from “KRAPKA” witnessed a dispute between a judge and a lawyer over the appropriateness of citing ECHR rulings. This occurred on January 17, when the Pechersk District Court of Kyiv was deciding whether to extend or revoke the pretrial detention of Mykhailo Sigida, a suspect in the organization of the murder of Vitalii Oleshko (Sarmat).

According to the prosecutor, it was necessary to extend the detention because, if released, Mykhailo Sigida could pressure witnesses and, given the severity of the potential punishment, could flee from the investigation. Sigida’s attorneys called these risks unfounded and requested that he be placed under house arrest. The judge asked them to explain why the risks were unfounded.

“We believe that the investigator’s arguments regarding the risk of absconding boil down solely to the particularly serious nature of the crime’s classification and are not substantiated by any evidence other than that classification. According to paragraph 21 of the ECHR’s decision in the case of “Podvezko v. Ukraine,” the risk that the accused might abscond cannot be assessed solely on the basis of the severity of the potential punishment. In other ECHR judgments (the attorney cited two other cases—Ed. “KRAPKI”), the court notes that the severity of the crime, even if a person is reasonably suspected of committing it, is of significant importance, but it cannot be the sole basis for keeping a person in custody,” said Valeriya Osadchuk, Sigida’s attorney.

The lawyer also cited examples from the ECHR.

“In his motion, the investigator unreasonably cites the interrogation protocol of suspect Matyushin as substantial evidence supporting the suspicion against Sigida, as this contradicts both Ukraine’s criminal procedure legislation and paragraph 102 of the ECHR judgment in *Vladimir Romanov v. the Russian Federation* dated July 24, 2008, according to which, to comply with the guarantee of Art. 6 of the Convention, when deciding on the admissibility of a guilty plea by a co-defendant—in this case, Matyushin—such a plea may be accepted only if it is established that the offense was committed by the person pleading guilty, and not by the co-defendant. “The court must proceed on the basis that a guilty plea, in and of itself, does not prove that the defendant was involved in committing such an offense,” Valeria Osadchuk stated in court.

In response, the judge noted that the current proceedings concern a suspicion rather than a formal charge, and also commented on the “trend” of citing ECHR rulings without justification.

“First of all, the European Court’s rulings concern only compliance with the Convention on Human Rights… It’s so trendy these days to [cite] European Court of Human Rights rulings in any hearing,” the judge replied.

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Ukrainian Practice: Mistakes and Abuses

“KRAPKA” asked lawyers whether citing ECHR rulings actually helps parties in legal proceedings, or whether it might simply be a passing trend.

First and foremost, experts note that Ukrainian courts apply the Convention on Human Rights and the case law of the European Court as a source of law when adjudicating cases. In similar proceedings, this allows different courts to maintain consistent judicial practice that is aligned with the European legal system. Furthermore, provisions regarding the application of the European Court’s case law in the adjudication of cases are included in all four procedural codes: the Criminal, Civil, Commercial, and Administrative Procedure Codes.

When a lawyer argues their position by citing a relevant decision of the European Court of Human Rights, it appears quite persuasive to both the court and the opposing party. However, in practice, the Ukrainian judicial system faces a number of problems even when well-founded references to European Court rulings are used.

The Situation in the Regions: “Polite” Ignoring and the Supreme Court’s Authority

It can be assumed that the Supreme Court’s awareness campaign will have varying degrees of effectiveness in Kyiv and the regions. Lawyers say that in local courts of general jurisdiction and courts of first instance, references to ECHR rulings are quite rare. There, out of habit, courts tend to follow the Supreme Court’s interpretations more often than the ECHR’s case law.

“In the regions, ECHR rulings are cited more often at the appellate level, in administrative and commercial courts. However, courts of general jurisdiction use ECHR rulings less frequently. I attribute this to the fact that these courts have a lighter caseload, so there is time to study European case law. In other words, in commercial courts, the workload per judge is lighter than in courts of general jurisdiction, which creates an opportunity for professional development. And since there are about 30% vacant positions in the appellate courts, the judges simply don’t have time to handle this backlog. They should handle cases at the level at which they are capable,” Andriy Verba explains to “KRAPTSI.”

As a result, some judges “politely” ignore lawyers’ arguments when they cite European practice.

“No one says outright, ‘I’m not interested in these European innovations.’ And no one ever will. They might say, ‘The court will evaluate this argument in the deliberation room.’ And then, as a rule, they never incorporate what was set forth in the motion into the ruling.

For trial courts, a citation from the Unified Register of Pre-trial Investigations regarding a case that has already been considered carries more weight than a reference to an ECHR decision. In a situation where there is a choice between two arguments—the ECHR’s view of the situation and a Supreme Court decision—judges will most likely take the Supreme Court’s decision into account, its legal position, rather than the ECHR’s ruling,” states Andriy Verba.

Will the Supreme Court’s initiative help?

According to attorney Vitaliy Starovoit, the weekly reviews of ECHR rulings initiated by the Supreme Court will help establish a uniform legal practice in Ukraine and reduce the number of sometimes diametrically opposed rulings in very similar cases or at different stages of the proceedings.

“The Supreme Court correctly noted that reviewing these summaries will allow representatives of all legal professions to follow the development of case law regarding the application of the Convention for the Protection of Human Rights and Fundamental Freedoms and will contribute to improving the state of human rights compliance in Ukraine,” says Vitaliy Starovoit.

However, obstacles may arise when studying European experience.

“I don’t think judges will take the initiative on their own to look for information about European Court of Human Rights decisions on the Supreme Court’s website. It’s better to send such information directly to the judges via letters. That way, it can be effective,” concluded Andriy Verba.