When a Scalpel Becomes a Kitchen Knife: How Ukrainian Courts Skillfully Distort ECtHR Practice

A bit of history

Long ago, in 1997, when Ukraine acceded to the European Convention on Human Rights, Ukrainian human rights activists dreamed of how the Ukrainian judiciary would be updated by using the legal positions of the European Court of Human Rights. Later, these expectations were embodied in the article of the Law “On the Execution of Judgments and Application of the Practice of the European Court of Human Rights”, according to which the legal positions of the European Court are used as a source of law in Ukraine. 

There was some resistance from the judiciary, which believed that Ukrainian legislation was sufficient to effectively protect human rights in Ukraine, but then the progressive human rights activists were joined by the Ukrainian parliament, which provided in all new procedural codes that the legal positions of the ECHR should still be used. But then... then there was an instruction from the Supreme Court: no decision of Ukrainian courts can be made without reference to the decision of the European Court. And then there were translations of selected ECtHR judgments to facilitate their use in the work of judges.

Thus, the modern “scalpel” for the most precise operations turned into an ordinary kitchen knife, sometimes quite blunt

Why did this knife become blunt? Because the legal positions developed by the most prominent professionals in Europe are sometimes used inappropriately, sometimes out of place, and sometimes simply in a different context than intended.

ECtHR vs. Ukrainian courts

Just a few numbers. I have analyzed the decisions of the High Anti-Corruption Court and the HACC Appeals Chamber since January 1, 2024. Why only the HACC and the HACC Appellate Chamber? Because these courts receive the most public attention due to their jurisdiction, and because they are judges who were selected after a considerable period of time since the date of accession to the Convention on Human Rights, respectively, and who are already well versed in this issue.

As of September 1, 2024, 41 verdicts and 5,747 rulings had been delivered. Of these decisions, 699 referred to certain ECtHR judgments. Lawyers will understand why the number of references to the ECtHR judgment in the case of Nechyporuk and Yonkalo v. Ukraine is not surprising. There are 255 such references. Almost all of them are the same. Given this, as well as the fact that prominent lawyers (Semen Khanin, for example) have already spoken out about the correctness of such references, I see no need to dwell on this. This is a simple copying of the text, which is most often used with an accusatory bias. I wonder why the European Court itself has not yet spoken out on this, but I guess I will wait for it when the ECtHR analyzes whether it has been correctly understood in Ukraine.

I want to show how the legal position expressed in the cases of Salov v. Ukraine and Pronina v. Ukraine has been distorted. I will start with the second case, although it does not concern criminal proceedings. The applicant in Pronina v. Ukraine filed a lawsuit in March 2000 against the local department of labor and social protection. In her claim, the applicant argued that under Article 46 of the Constitution and Article 19 of the Law “On Pensions” her pension could not be lower than the subsistence minimum. Based on the fact that she was awarded a pension below the subsistence level, the applicant demanded a corresponding increase in her pension.

When considering the claim, the courts referred to the legislation on pension provision, but did not respond to the argument regarding the constitutional provision. Considering the case, the European Court recalled “that Article 6 § 1 of the Convention obliges the courts to give reasons for their decisions, but this cannot be taken as a requirement to provide a detailed answer to each argument. The limits of this obligation may vary depending on the nature of the decision. In addition, it is necessary to take into account, inter alia, the variety of arguments that a party may present to the court and the differences that exist in the participating States in terms of legal provisions, traditions, legal opinions, presentation and formulation of decisions. Thus, the question of whether the court has fulfilled its obligation to provide reasons arising from Article 6 of the Convention can only be determined in the light of the specific circumstances of the case (see Ruiz Toriya v. Spain, judgment of 09 December 94, Series A, no. 303-A, paragraph 29).” As a result of this approach to the validity of the court decision, the European Court found a violation of Article 6 of the Convention, which guarantees the right to a fair trial, since the national courts did not make any attempt to analyze the applicant's claim in terms of the constitutional provision, despite the applicant's direct reference to the constitutional provision in each court instance. 

I am ready to agree that although the case is civil in nature and not criminal, the approach to the reasonableness of the court decision is general, common to any decision. But then it is logical to use not the first line of the legal position, but the position as a whole, in its entirety. 

In the case of Salov v. Ukraine we have already analyzed the criminal proceedings against the applicant. In this case, the district court first examined the case and, in accordance with the criminal procedure legislation in force at the time, decided to refer the criminal case for additional investigation. It suggested that the prosecutor's office reconsider the preventive measure imposed on the applicant and re-qualify the charges against him, noting, in particular, that the investigation authorities had not sufficiently established whether the actions of S.P. Salov constituted a criminal offense. However, after the court's decision was overturned on supervisory review, the regional court, having considered mostly the same evidence during the trial, came to a radically different conclusion about the need for further consideration of the case and the applicant's conviction. In the present case, the European Court uses almost the same legal position: “However, Article 6 § 1 cannot be understood as requiring an explanation of the detailed response to each argument of the parties. Accordingly, the question of whether the court has complied with its duty to give reasons can only be examined in the light of the circumstances of each case (see Ruiz Torija v. Spain, judgment of 9 December 1994, Series A, no. 303-A, p. 12, paragraph 29)”.

Having analyzed the criminal proceedings against the applicant in the light of the above legal position, the European Court concluded: “In the light of the foregoing, the Court considers that the applicant could not enjoy the benefit of a fair trial, since the domestic courts did not provide a reasoned answer as to why ... the district court ... initially found no evidence of the applicant's conviction on the charges against him and on 7 March 2000 returned the case for further investigation, and on 6 July of the same year found the applicant guilty of obstructing the exercise of the electoral rights of Ukrainian citizens. The absence of a reasoned court decision prevented the applicant from raising these issues at the appeal stage (see Suominen v. Finland, application no. 37801/97, paragraph 37, judgment of 1 July 2003).” As a result, a violation of Article 6 § 1 of the Convention was found. 

What the HACC says

Having dealt with the legal position of the European Court, I propose to return to how this position is used in the decisions of the High Anti-Corruption Court. An example from the decision in case No. 991/3665/24:

“The investigating judge considers it necessary to note that in view of the practice of the European Court of Human Rights as a source of law, the court is obliged to justify its decision, but this does not require a detailed response to each argument, and the extent to which the court must fulfill the obligation to justify the decision may vary depending on its nature (decisions of the European Court of Human Rights in cases: “Salov v. Ukraine, Pronina v. Ukraine, Seriavin and Others v. Ukraine, Ruiz Torija v. Spain). 

The other issues (circumstances) referred to by PERSON_8's counsel in his objections do not in any way refute the grounds established by the investigating judge for seizing the seized property, and their resolution is not relevant to the subject matter of this proceeding and will not affect the final decision.”

That's all. I don't know what the defense arguments were in this case. But this is not the main thing. The HACC judge understood the legal position of the ECHR as a kind of indulgence not to respond to the arguments of the defense. In general. Does this understanding of the European Court's position comply with the spirit of the Convention? I have a personal opinion that it does not. 

Thus, the European Court protects national courts from the need to comment on any argument of a party in a case, realizing that sometimes the arguments may not be on the merits of the case. However, the legal position stated in Salov v. Ukraine, Pronina v. Ukraine and other cases is rather a prelude to the European Court's analysis of whether the national courts have complied with the principle of reasonableness of the court decision. That is why, after the above quote, anyone interested can find the European Court's analysis of whether the Convention requirements have been met. And the national court must conduct such an analysis in its judgment, indicating why it rejects a party's argument in the case, without hiding behind the position of an institution that protects human rights from state action. 

An interested reader will find approximately the same wording in 50 more HACC decisions since January 1, 2024 alone. That is, in 50 decisions, the judges gave themselves permission to ignore the arguments of one party in the case, inspired by the legal position of the European Court of Human Rights.

Next time, I propose to discuss what the public interest is and how this interest began to appear in HACC decisions.

Valeriya Lutkovska, Ukrainian Parliament Commissioner for Human Rights (2012-2018), Honored Lawyer of Ukraine