Unprecedented and unenforced

Ukraine has yet to enforce the vital European Court of Human Rights judgement from January 2013 which found numerous violations in the dismissal of Supreme Court judge Oleksandr Volkov.  The Court, exceptionally, ordered Volkov’s reinstatement, and the Council of Ministers of the Council of Europe is expecting information as to enforcement of the judgment in September.

The government appealed against the original judgment and on 27 May 2013 lost.  As reported at that time, Ukraine’s Representative to the ECHR, Nazar Kulchytsky promised that the government would not delay in enforcing the judgment.  He said, however, and this was repeated by the then Justice Minister, that there was a major problem since there was a full number of judges at present. 

In an article for Dzerkalo Tyzhnya, Mykola Melnyk calls the Volkov v. Ukraine case unprecedented for Ukraine and for the ECHR itself.  This is both because of the violations found and the measures imposed by the Court

He refutes the arguments as to why Volkov cannot be reinstated.  In the first place, he says, there are presently two vacancies.  Secondly, reinstatement according to labour legislation is not dependent on staffing schedules. He also suggests that an obvious way out, which has been taken in other cases, would be for parliament to adopt a resolution cancelling the previous decision to dismiss Volkov.

The Court in Strasbourg found unanimously that there had been the following violations of the European Convention on Human Rights:

Article 6 § 1 as regards the principles of an independent and impartial tribunal;

Article 6 § 1 as regards the principle of legal certainty and the absence of a limitation period for the proceedings against the applicant;

Article 6 § 1 as regards the principle of legal certainty and the dismissal of the applicant at the plenary meeting of Parliament;

Article 6 § 1 as regards the principle of a “tribunal established by law”;

Article 8 of the Convention.

The Court ordered that Ukraine should „secure the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date”.

It also found systemic problems in the judicial system which needed addressing. 

None of the above has yet happened.  Ukraine’s only compliance would seem to be in paying out (via taxpayers’ money) the hefty 18 thousand EUR awarded in compensation and court fees.

There was another area where action was required, yet has not been forthcoming. This judgment was important also since the Court found that the vote in parliament for Volkov’s dismissal had been unlawful since 226 MPs had been required by the Constitution to be physically present in parliament.  There were provably far fewer MPs with their party colleagues using their cards to “vote” in their absence.

The fact that the European Court of Human Rights found the decision taken to have thus been unlawful is crucial since a huge number of laws and resolutions have been “passed” in similar fashion.  Stanislav Shevchuk who has recently served as Acting Judge from Ukraine at the European Court of Human Rights pointed out shortly after the judgment in January that laws adopted using other MPs’ cards can be revoked by the European Court.

There is no evidence that the government is taking any real measures to either reinstate Oleksandr Volkov or to adequately address the issues raised in this pivotal judgment. Image: alternateeconomy.wordpress.com