The Last Stronghold of Justice
Anna I. Lobkovaskaya
The ECHR provides legal recourse of last resort for the Ukrainian judicial system, but the court’s mission is to initiate systemic reforms in a country where there is wrong doing.
More than sixteen years have passed since Ukraine signed the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. Since then the European Court of Human Rights (the ECHR, the Court) began to deal with cases against Ukraine. Currently, the number of ECHR judgments which found violation of the Convention or its Protocols by Ukraine is over one thousand (948 judgments according to the 2013 statistics1). Surely, ECHR case law has strong influence on the Ukrainian legal system.
Unfortunately, there was no significant improvement of the situation with the observance of human rights by the Ukrainian authorities in 2013. Gross abuses by the authorities resulted in numerous high-profile cases. Business was under heavy pressure from regulatory bodies. In addition, the new Code of Criminal Procedure of Ukraine has simplified initiation of criminal cases and, thus, many administrative cases turned to criminal prosecution. It gave rise to many violations. Domestic courts resolved many complex cases, but the national judicial system demonstrated its ineffectiveness.
Therefore, protection of human rights in the ECHR becomes increasingly important.
The Court’s case law proves that not only individuals, but also companies, can protect their rights in the ECHR.
Procedural issues
Basic requirements for applying to the ECHR are envisaged directly in the Convention (Articles 34 and 35) and in the Rules of the European Court of Human Rights, namely Rules 45 and 47.
According to Article 34 of the Convention, the Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by a member state of the rights set forth in the Convention or the Protocols thereto.
However, pursuant to Article 35 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.
The Court shall not deal with any application submitted under Article 34 that:
(a) is anonymous; or
(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to
another procedure of international investigation or settlement and contains no relevant new information.
The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
Practice shows that ECHR Rules and application admissibility criteria are much more complicated for Ukrainians as compared to domestic court proceedings and requirements. Thus, a lot of rightful claims are at risk of being rejected because of formal defects. Less than 1/10 of applications to the ECHR can pass the first stage of the procedure.
Applications are commonly rejected on the ground that not all domestic remedies have been exhausted, as is required by Article 35 of the Convention. Such domestic remedies include common procedures and exclude extraordinary steps (such as application to the President of Ukraine, etc.). Many applications are rejected due to breach of Article 35 of the Convention setting forth a limitation period of six months from the date on which the final decision was taken.
Many applications are recognized as inadmissible because of their objective incompatibility with the provisions of the Convention or the Protocols (ratione materiae), when an applicant claims for violation of right which is not protected or guaranteed by the Convention or the Protocols.
Applications have also been rejected as “manifestly ill-founded”, when in the applicant’s case files the Court finds no violation of the rights and freedoms set out in the provisions to which he refers. It usually happens because of lack of reasoning and weak evidence base, when the Court concludes that such a case is not worth dealing with.
If the applicant has not suffered a significant disadvantage it can also be a reason for rejecting an application (according to Protocol No.14 to the Convention) unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
Despite frequent rejections, more and more applications are submitted due to the increasing legal awareness of the population and their knowledge of the ECHR’s activities. It is also much conditioned by the fact that experts in Ukraine frequently call the ECHR an effective means of protecting business interests.
It shall be noted that not all (rather very little) disputes between business entities and public agencies may be brought before a supranational judicial body. Most of the rights protected by the Convention and Protocols thereto are applicable only to individuals.
One of the provisions, which nevertheless can be widely applied to legal entities is Article 1 of Protocol 1 to the Convention regarding protection of property envisaging that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The ECHR’s case law evidences that the concept of “property” is autonomous for the Court (it is not limited to the definition of this concept by national law) and is considered broadly, i.e. denial of a VAT refund can be treated as a deprivation of property.
Article 6, Para.1 of the Convention is also applicable to companies stating that in the determination of civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public hearing. The Court interprets criminal charge as a standalone concept not depending on its interpretation by the domestic law, and under some circumstances it can mean imposition of financial penalties on a legal entity even if national law formally does not refer such penalties to a penal sanction.
In other words, the company applying to the ECHR is even more likely to have its application rejected than an individual, and, thus, shall make more effort to justify it.
However, judgments like Agrokompleks v. Ukraine, 6 October 2011, No.23465/03 in which the Court found a violation by Ukraine of Article 1 of Protocol 1 to the Convention, are bright evidence of the effectiveness of Court procedures for business. According to the judgment in Agrokompleks v. Ukraine (just satisfaction), 25 July 2013, No.23465/03, the Court defined a record-breaking amount of compensation for Ukraine totaling EUR 27 million.
The question of compensation, as in the case of OAO Neftyanaya Kompaniya Yukos v. Russia, 20 September 2011, No.14902/04, which found a violation by Russia of Articles 6 Para.1 and Para 3(b) of the Convention, may be a milestone in relations between the ECHR and business entities.
The amount of compensation claimed comes to billions of dollars, far more than the amount previously determined by the Court.
Representation in the ECHR
In connection with application lodged the Rules of Court put the least stringent requirements — it shall be in one of the official languages of the member states (not only in the Court’s official languages — English or French), participation of an advocate or another professional lawyer is not required. However, involvement of a professional lawyer still becomes mandatory at later stages.
Given this and being aware of the high probability of rejection of the application at the initial stage, most of the applicants, seriously considering the prospects of their undertaking, turn to lawyers even before submitting an application.
Taking into account specific procedures of the ECHR and growing popularity of appeals to the court, representation in the ECHR turned into independent practice in the professional community of Ukrainian lawyers. In addition to the high national legal qualification, professionals in this field shall also have a thorough knowledge of the Convention, its Protocols and case law of the ECHR consisting of thousands of judgments, many of which are not translated into the Ukrainian or Russian languages.
Practice of application
According to Article 17 of the On Execution of Decisions and Application of Practice of European Court of Human Rights Act of Ukraine of 23 February 2006, No.3477-IV, Ukrainian courts shall apply the case law of the ECHR as a source of law.
The ECHR’s case law is widely used to protect rights of parties to criminal and criminal enforcement proceedings regarding violations committed by the employees of law-enforcement, state prosecution and penal institutions, as well as judges.
Speaking of application of the ECHR’s case law for business, tax disputes shall be noted firstly. The number of tax disputes in Ukraine is very significant and is constantly growing. Some ECHR’s judgments, such as Bulves AD v. Bulgaria, 22 January 2009, No.3991/03, about the company’s liability for its counterparty’s actions, have found wide enough application in tax disputes. References to such judgments can be found in hundreds of judgments approved by Ukrainian administrative courts.
The judgment in the Intersplav v. Ukraine case, 9 January 2007, No. 803/02 in which the applicant company was awarded compensation for damage incurred as a result of VAT default by the state, is also an interesting precedent for business entities.
The ECHR’s archives have many judgments applicable to justify the legal position in court cases. However, references to the above judgments are much more likely to be found in statements of claim and complaints than in the decisions of the Ukrainian courts. Despite replication of the ECHR’s judgments in circulars of higher courts, the lower courts apply many of them quite rarely.
However, this trend is slowly changing for the better.
Example to the opposite
Although the ECHR is primarily aimed at protecting human rights and interests, it also happens that the practice of the European judicial body is in favor of the state. Of special interest is the case when the Higher Administrative Court of Ukraine (HACU) in its Letter of 18 January 2012, No.165/11/13-12, substantiated the multiple increase in the court fee charged to the claims on appeal of tax decision notifications referring to the ECHR judgment in the case of Shchokin v. Ukraine, 14 October 2010, No.23759/03 and 37943/06
The HACU expressed the opinion that the ECHR determined the property nature of tax legal relations, which implies that the taxpayers’ claims to appeal against tax decision notifications are of a property rather than a non-property nature, as thought previously.
Hardly any participant in the case could have expected such a resolution.
Lack of systemic reforms
Without denying the value of the ECHR’s case law for Ukraine, it must be noted that the growing popularity of this institution in our country emphasizes the imperfection of domestic remedies, which raises serious concerns.
The ECHR is neither intended nor able to be a permanent final authority in the judicial systems of member states. It shall restore justice in those exceptional cases where the public system failed. First and foremost, it shall contribute to elimination of systemic violations of member states. It means that the conscientious response of national authorities to the shortcomings in legislative changes, administrative reforms and bringing case law into line with the ECHR’s standards as determined by the Court, rather than elimination of individual violations, shall be the main point of the ECHR’s activities.
Unfortunately, this objective is still to be attained.
