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10.06.2013

Unconvincing assurances over enforcement of crucial ECHR judgment

   

The "voting" for numerous truant members of ones faction remains common practice in the Verkhovna Rada

On 27 May the European Court of Human Rights rejected Ukraine’s appeal against the judgment issued in the case of Volkov v. Ukraine.  The Government’s Representative to the ECHR Nazar Kulchytsky has told Interfax Ukraine that Ukraine will not procrastinate in enforcing the January judgement from the Court which ordered the reinstatement of Oleksandr Volkov to his post as judge of the Supreme Court.  He claims that there is effectively no time limit for this enforcement but that the government will not delay.

On the other hand, he stresses that the problem is that there is a full quota of judges in the Supreme Court at present.

As reported, in a very important judgement in January 2013 the European Court of Human Rights found that Ukraine violated the rights of a Supreme Court Judge dismissed in 2010 by the High Court of Justice “for infringement of oath in 2010 and has ordered his reinstatement.  In the case of Oleksandr Volkov v. Ukraine, the Court found unanimously that there had been:

Four violations of Article 6 (the right to a fair trial) of the European Convention on

Human Rights, and

A violation of Article 8 (right to respect for private and family life)

“The Court held in particular: that the proceedings leading up to Mr Volkov’s dismissal

had not fulfilled the requirements of an “independent and impartial tribunal”; that the

proceedings before the High Council of Justice, which initiated the inquiries leading up to his dismissal, had been unfair as there were no time-limits for such proceedings; that

the vote in Parliament on his dismissal had been unlawful; and, that the chamber of the

Higher Administrative Court, which reviewed the case, had not complied with the

principle of a “tribunal established by law”.

Under Articles 41 (just satisfaction) and 46 (binding force and execution of judgments),

the Court, in view of the serious systemic problems concerning the functioning of the

Ukrainian judiciary disclosed in Mr Volkov’s case, recommended Ukraine to urgently

reform its system of judicial discipline. It further held that, given the very exceptional

circumstances of the case, Ukraine was to reinstate Mr Volkov in the post of Supreme

Court judge at the earliest possible date.

Stanislav Shevchuk, Acting Judge from Ukraine at the European Court of Human Rights, has said that other laws adopted using other MPs’ cards could be revoked by the European Court.  He points out that this is a clear violation of Ukraine’s Constitution which states that MPs must vote in person.

“What the Ukrainian government should do immediately after the European Court judgement is to stop the voting by “pianists” (with hands stretching over many “octaves” or seats – translator) in parliament. That would be the most effective means of implementing the court judgement”,

He noted also that the Court’s revoking of the decision to dismiss Volkov could form a precedent for cancelling laws adopted with analogous violations.

 

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