Interview with Anna Yudkivska, newly-elected European Court of Human Rights Judge
On 27 April 2010 the Parliamentary Assembly of the Council of Europe (PACE) elected Anna Yudkivska as judge to the European Court of Human Rights with respect to Ukraine. The news was warmly welcomed by Ukraine’s civic society. Her candidacy had been supported not only by well-known Ukrainian former dissidents and human rights defenders, but also by Yelena Bonner, Sergei Kovalev and others. The following is from an interview by a member of the “Maidan” Alliance
Ms Yudkivska was asked first of all what had prompted her to apply for the position, since she was not an international lawyer.
- Among European Court of Human Rights [ECHR] Judges there are lawyers working in entirely different fields. The public have the idea that a judge of an international court needs to be a specialist in international law, yet this is not exactly the case. The European Court of Human Rights differs from other international courts in that its judgments are issues of legal tradition of the member states and therefore the national judge is asked for elucidation regarding how the internal legal system works. This means that s/he must have excellent knowledge of the domestic, and especially procedural, law. Human rights, the law of the European Court of Human Rights are separate specializations which I studied in various law schools in Holland, Poland, Sweden and France. It was specifically to gain greater knowledge of ECHR case law and its procedure that I accepted the offer of a temporary post in the Court Secretariat. However that is also not the main thing. Besides knowledge of the Convention and domestic law, it is important to have your own position. Bar lawyers, human rights activists have a lot of experience encountering human rights abuse and this develops an intuitive sense of the scope of individual rights and freedoms and the sense, as the well-known former prisoner of conscience Sergei Kovalev put it, of “moral incompatibility” with rights violations. A firm position and conviction that what you are doing is right comes after you yourself have run up against the brick wall of the Ukrainian justice system, have heard almost daily stories of innocent people being put behind bars and have yourself wanted to somehow help those others in need. You know it’s one thing to work with paper and quite another to take upon yourself the responsibility for another person’s fate. The latter requires both high professional standards and ethical norms. All bar lawyer morality, forgive the pathos, is based on honesty, sincerity, competence and respect for each human being. A lawyer loves and understands the human being and knows how to defend his or her rights. Each case is individual. If you remember Camus’ “The Fall”: “We are all exclusive cases. We all want to appeal for one or other reason. Each person demands that s/he be declared innocent in any case even if that would require accusing the entire human race and Heaven.” A lawyer’s profession poses many moral questions. When you have learned to answer these questions, you gain the right to defend human rights. It’s no accident that in some countries only a person who has been a bar lawyer and who knows from his or her own experience what it means for the average person to end up in the clutches of the justice system, can be a judge.
So would you suggest changing the approach to international court proceedings?
Under no circumstances. The Court needs both theoretical and practical specialists. There is, moreover, a widespread view that the Court needs three categories of lawyers: practising lawyers to show the source of the problem; theoretical – to demonstrate the waves of resolving it; and politicians to show the paths for future development. Up till now the Judge from Ukraine was a person who was for me a model of a combination of legal and research talent with the wisdom of a teacher and exceptional moral human qualities. I am speaking of the outstanding international lawyer Volodymyr Butkevych. During all 11 years of his work in the Court he gave to judgments the quintessence of Ukrainian legal thought and one cannot overestimate his role in the Court. I am not sure that there are any international law experts of his calibre in Ukraine and any comparison is inappropriate. My aim is different, to apply in the Court an understanding of the specific features of the Ukrainian process (after all the majority of rights violations in Ukraine are not due to failings in legislation, but through faulty law application) and my understanding of the moral component of the concept of human rights based on experience of compassion and assistance. I am convinced that the strategic role of the European Court of Human Rights is to help the country as soon as possible to cure its ailing legal system and practical knowledge is important in this.
Have you not felt an inner discomfort from it now being necessary, not to defend, but to try people?
The European Court of Human Rights does not try a person - it establishes whether the State has violated the person’s rights. The role, therefore, of an ECHR Judge is to a certain extent in harmony with the function of a bar lawyer. It is most natural to bar lawyers if only through their own life position. Defending the interests of one person, they defend society in general. In the old times there were lawyers, no bar lawyers, judges, prosecutors. A lawyer could defend somebody one day and the next perform the function of prosecutor. With the difference in procedural position, it was important to have a shared understanding of the law. The role of judges is unique – they build bridges between the law and society, and must thus have a good knowledge of both the law and legislation which society lives by, as well as how these laws develop. Society is evolving, and our conception of human rights is evolving with it. Changes in Court case law are the best illustration of this. A bar lawyer’s firm position, love for the human being and assessment of the circumstances of the case specifically through the prism of this love help to sense when established standards need to be changed.
Since you will soon be taking office as judge, could you please explain how you personally plan and, mainly, will be able to improve the situation with human rights protection in Ukraine?
That’s an extremely pertinent question for me although I must stress that the Court works only with those cases where it has received applications, and only within the scope set out in the application and on the basis of the arguments presented by the applicant and the Government. Therefore neither the judges, nor Secretariat lawyers who prepare the case for examination, are able to “save” an important, yet badly presented, case. This places a great responsibility on the lawyers representing applicants. In this sense the work of the judge in talking with lawyers, domestic judges is vital. At the same time the position of the judge is also important in discussing the policy and development of the European Court. For example, at present, in order to reduce the number of applications, the possibility is being discussed of introducing something like a court duty for applications to the Court. I consider that unacceptable especially for such countries as Ukraine. After all, an amount which is symbolic for Western Ukraine is equal to the daily allowance for the majority of Ukrainians. And also how can prisoners who don’t have relatives or lawyers to help them make a bank transfer? This would deprive a large number of those who are poorest and without rights of access to the Court.
Ms Yudkivska was asked to comment on gossip from various Internet sites suggesting that she had been elected for gender considerations,.
Any public figure is doomed to get such attacks. I don’t feel I need to apologise that I was born a woman. I had the opportunity to demonstrate my professional value and independence, and my friends and enemies will have the opportunity to further become convinced of that. Indeed the Council of Europe is concerned about discrimination against women and therefore they encourage the appointment or election of a woman where the candidates are equally well-qualified. If the woman’s level is weaker, they choose the man. Otherwise they would elect only women to the Court and that is absolutely not the case
In summing up, how would you present yourself to “Maidan” readers? How in one or a few sentences would you describe Anna Yudkivska?
Anna Yudkivska is one of you, a person, lawyer, woman , mother. Regarding the role in life which I feel to be mine, there is a book about the prominent Soviet lawyer and defender of dissidents Sofia Kalistratova (which I would, by the way, recommend to all lawyers just starting out), which is called “Defender”. In no way aspiring to any kind of parallel with the great lawyer, I would simply like to say that I have always felt myself to be specifically a “defender”. [Zastupnytsa is a person who intercedes, stands up for others – translator]
And what wishes do you have for the readers?
The readers of “Maidan” are the most active part of Ukraine’s civic society. It is a strong community and I sincerely hope that they will not lose that innate sense of social justice. Only a strong civic society is capable of controlling the authorities. Remain honest, courageous and true to your principles. I wish you success in your struggle for a law-based State!
From Strasbourg, especially for “Maidan (very slightly abridged