Again about the mysteries of the European Court
I was made to write this article having read the note by Viktoria Vasylyeva „The mysteries of the European Court“ published in the newspaper „Svoboda“ (No. 17, 7-14 May). The author of the note refers to a publication in the bulletin „Prava ludyny“ of the Kharkov Group for human rights protection (the KhG, in what follows), which bulletin I have the honor to be the editor-in-chief. Ivan Lishchina, our former juridical counselor and now a probationer of the Secretariat of the European Court of human rights (the Court, in what follows), told „Prava ludyny“ (PL, in what follows) readers about some changes in the Regulations of the Courts work; this information was retold by V. Vasylyeva. In my opinion, we must be grateful to I. Lishchina for informing everybody interested about these changes that are very essential. Yet, Ms. Vasylyeva accused Lishchina of incompetence, since he allegedly misleads the readers stating that for the exhaustion of all internal means of legal protection one must turn to a cassation instance. „If the PL comment was absent, Ms. Vasylyeva wrote, „this misleading statement would have bad consequences. Do not you think that the European Court probationer has no sufficient qualification and does not know that the Supreme Court, that is the cassation instance, is now necessary and efficient only when the instance was an appeal one? May one hope for a just consideration of his case in the European Court, if our representatives there demonstrate the elementary professional ignorance? I do not want to admit the possibility of the worst variant – conscious misleading“.
I want to ensure Ms. Vasylyeva that Ivan Lishchina has sufficient qualification. If he had no fundamental knowledge in the area of the European right, Ukrainian laws and English language, he would not be invited to work in the Court. Five years ago this talented young man came to our Group being a student of the National Juridical Academy. Now he is a post-graduate of the same Academy, he wrote the monograph „International instruments of human rights protection“ (by the way, excerpts from it are now published in the newspaper „Yuridichny visnyk Ukrainy“). Along with his strenuous work in the Court, Lishchina finds time and efforts to continue his research work.
The problem lies in the other area. The question, if, since 21 June 2001, the cassation instance is an efficient tool of legal protection, is debatable and much more complicated than the question whether earlier one had to turn to the Supreme Court for the exhaustion of all national means of legal protection. The small court reform brought the Ukrainian court system to the classic European three-level system: local, appeal and cassation courts. So, it is quite logical to regard the cassation instance as an efficient tool of legal protection, as Ivan Lishchina wrote.
Yet, the real answer to the question whether the cassation instance will be efficient will be given only by practices, which now are scarce. The court system is now being reformed and it is impossible yet to say a priori what will follow. The new procedural law is not adopted yet, and the old one contains a lot of contradictions. Until now what one more often observes is a great number of tricks and refusals given by the three judges of the Supreme Court during consideration of cassation complaints, which was more than once described in the press. Our bulletin also mentioned such facts. If this practice becomes established, then, in my opinion, the Court will react correspondingly. Yet, for this complaints handed to the Court must convincingly prove the too high discretion rights of the Supreme Court judges, who refuse to consider cases. Nowadays it is impossibly to draw an unambiguous conclusion, so one may not assert that it is sufficient to pass an appeal instance and only after that to hand the complaint to the Court. I am sure that in such a situation the Court will send the demand to exhaust all national means of legal protection, but the terms of handing the cassation complaint may be already skipped! And then the claimant will loose the opportunity to protest against the unjust, in his opinion, decision of the appeal court both in the cassation instance and in the Court. Thus, I would advice that, if there are some doubts about the effectiveness of the cassation instance, to hand the complaint to the European Court accompanied with the reasons of the doubts, and parallelly hand the cassation complaint.
Viktoria Vasylyeva and her colleagues more than once wrote with great assuredness in „Svoboda“ and other editions about their experience in contacting the Court and that the reason why their complaints were rejected was the guilt of Ukrainian representatives in the Court – see, for example, the article „Ukrainian root in the European Court“ („Svoboda“, No. 13, 9-16 April). „only eight (!) complaints out of five thousand were accepted during three years!“, wrote Ms. Vasylyeva, „Only 10% of the total number of the complaints were registered (this does not mean that they were accepted), but it is unknown, when these complaint will be considered. Mist and mystery… Who is interested in such enigmatic situation? Why so many cases appeared to be rejected? Why this red-tape accompanies many court procedures?“
I shall risk to elucidate this mystery. The Ukrainian claims share the lot of the claims from other countries in the first years of their joining the European Convention: these complaints are ungrounded and badly prepared. I want to remind that in 1960, when the Court just began to work, 710 out of 713 complaints were rejected. The KhG has already being consulting citizens about the preparation of such complaints for several years, and we not a single time (!) we saw a professionally compiled complaints. Almost every time they were too lengthy (sometimes 50-60 pages!) and, as a rule, they told about unimportant details. The complaints left out the essential information, information on the applied laws, etc., although they were often compiled by professional lawyers. I am sure that the lions share of the refusals of the Court is due to the insufficient professionalism of the complaints authors. What concerns the too long terms of considering the complaints in the Court, this is a real problem. The number of complaints is very great (by the way, Ukraine occupies not the first place by the number of complaints, as the Vasylyeva asserts, but only the eighth), and their thorough consideration demands much time, and the rejections of the complaints are meticulously checked. A court process is in general a long procedure, and especially a process in the European Court. One must patiently wait for 3-4 years until the case passes all the stages. It is noteworthy that now the Court attempts to somewhat accelerate the consideration of cases. The perfection of the procedure of considering complaints is being discussed, the personnel is increased. Now six Ukrainians work in the Court Secretariat over the Ukrainian complaints.
I shall uncover one more mystery (I hope that their right for privacy will not be violated!): all they are quite young people having unburdened with the experience of working in Ukrainian state organs, and they are not representatives of Ukrainian bureaucrats, as Ms Vasylyeva and her colleagues think. All the Court staff passes through the contest directly in the Court. When they send the letters to claimants asking to send some additional documents, they try to correct the drawbacks of the complaint and to make it more convincing. They must be thanked for this, not reproached! It should be remarked that our experience of communicating the Court is quite positive.
Ms. Vasylyeva and company demand from the Ministry of Justice to resume the work of the Information office of the Council of Europe in Ukraine, which has no opportunity to function normally, since it has no room for work (see the article „Caesars share to Caesar, and Ukrainian share to Ukrainians“, „Svoboda“, No. 20, 28 May – 4 June). I support this demand and am very grateful to the authors for they publicly raised this question. However, this question must be addressed not only to the Ministry of Justice but also, maybe in the first turn, to the Ministry of Foreign Affairs. The absence of an adequate office for the informational representation of the Council of Europe in Ukraine – this is just shame upon Ukraine!