The New Trial: Kafkaesque Punishment for Cooperation with the ECtHR

By Prof Kanstantsin Dzehtsiarou (University of Liverpool), Editor-in-Chief of the European Convention on Human Rights Law Review

It has been discussed on various levels that weak enforcement of the ECtHR judgments is a major drawback of the whole system. The lack of political will of the governments of the Contracting Parties to the Convention to engage with the ECtHR and the Committee of Ministers is often deemed to be one of the key reasons for slow enforcement of judgments and limited impact of the ECtHR on the standards of human rights protection in Europe. One of the ways to ensure quick embeddedness of the Convention is to resort to friendly settlements where the state accepts the responsibility for an obvious violation and pays appropriate compensation. The Committee of Ministers supervises execution of these friendly settlements although not always to the maximum effect. Recently the Court has introduced a new mandatory period during the procedure in Strasbourg during which the parties should consider a friendly settlement. Apparently, Ukraine is the only Contracting Party to the Convention which opted out of this procedure for the reasons discussed below. Friendly settlement is a very useful tool especially in cases of repetitive routine violations. This blogpost will try to convey two key messages. First, that national politics can put a halt on effective implementation on human rights even through preventing friendly settlements. The ability of national politics to affect human rights is hardly an original point but the story that is happening now in Ukraine gave this point a new twist. Second, that the Council of Europe has responsibility to react when the reputation of the Court, its judges and decisions are undermined.

Criminal Investigation for a Friendly Settlement

As I have mentioned friendly settlements can be a useful and effective method of solving multiple repetitive violations of the Convention. These violations are usually obvious and delay in their reparations only extends unnecessary suffering of the applicants. However, the recent events in Ukraine show that when the government decides to conclude friendly settlements pre-empting the finding of a clear violation by the Court, it should be aware that this might lead to criminal proceedings against the said government. Such bizarre case is unravelling in Ukraine. All facts of this case are taken from open sources and proceedings in Ukraine are still ongoing. That said from the outset the whole process looks like a punishment for cooperation with the ECtHR.

For a long time, non-execution of the final national judgments was seen as a structural human rights problem in Ukraine. In this type of cases the national authorities fail to enforce national judgments. This failure means a clear violation of Article 6 (right to a fair trial) and sometimes also leads to a violation of Article 1 of Protocol 1. There were thousands of such judgments against Ukraine. The Grand Chamber judgment in Burmych case that was discussed in this blog previously is precisely on that issue. The ECtHR routinely finds violations in these cases not only against Ukraine but there were pilot judgments in similar cases against Russia and Moldova. Both unilateral declarations of the governments accepting violations and friendly settlements are common in cases like these.

The case of Zolotyy Mandaryn Oyl, TOV v Ukraine did not seem to be unusual. In 2013, it was sent by the Court to the government of Ukraine among 5000 similar applications. In this particular case, a partially state-owned company took a loan from the applicant company but failed to return this loan on time. The national court ruled that the debt should be returned and although this ruling was final and enforceable it has never been implemented domestically. The applicant brought a claim to the ECtHR and this case was destined to be one of many cases where the Court would find a violation of the ECHR. However, in 2015 the government decided to conclude a friendly settlement with the applicant. The state paid the compensation which was significant in this case but not out of ordinary (around 2 million euros). As a result, the Court concluded the proceedings in this case. A few years later the national anti-corruption bureau of Ukraine initiated investigation accusing the governmental agent, the owners of the applicant company and even the lawyers representing this company that they have colluded and “wasted” national resources by accepting this friendly settlement. According to the bureau even if there was a violation of the Convention it should not have been dealt with by concluding a friendly settlement. It seems that this investigation impacted the governmental strategy as the number of friendly settlements concluded by Ukraine dropped dramatically since.

This creates a troublesome precedent that limits the discretion of national authorities who genuinely wish to implement the ECHR without waiting for the ECtHR to deliver a judgment in very obvious cases. In the case at issue, the state of Ukraine would have to pay this compensation anyway sooner or later and friendly settlement just made the process quicker and simpler for the Court. Moreover, the procedure saves precious financial resources for the respondent state as, in a judgment, the Court takes into account the length of delay of execution which results in an increase in just satisfaction for the aggrieved party.

It has been argued before that often complexities in the process of execution resurface when domestic politics can interfere with the process of implementation of judgments. If there is an administrative infrastructure for implementation then this political process turns into an administrative one with increased effectiveness. The Council of Europe can encourage the states to establish administrative pathways of execution and allow politics to decide on strategy rather than on enforcement of particular judgments.

The ECtHR often demands to conduct independent and prompt investigation of human rights violations but this is perhaps the first time when a criminal investigation is looking into compliance with human rights.

Unnecessary Pressure on the Court and its Judges

Another curious detail of this case is that the anti-corruption bureau tries to establish a link between this friendly settlement and a prominent Ukrainian lawyer, businessman and politician who is the husband of the currently sitting judge elected on behalf of Ukraine. Although the link seems tenuous, this creates significant pressure on the sitting ECtHR judge. Although judge Yudkivska is finishing her tenure in Strasbourg, the national shortlisting of the candidates for the position of the new ECtHR judge elected in respect of Ukraine was not perfect and she might continue working in Strasbourg at least for some time. Every now and then states try to put pressure on ECtHR judges. Some of these situations emanating from various member states of the Council of Europe are known and documented. Attempts to put pressure on judges was one of the reasons why Protocol 14 to the Convention changed the way judges are elected. Before 2010 when Protocol 14 entered into force judges were elected for the period of time of 6 years with a possibility to be re-elected once. A few times, governments did not put the sitting judge forward for re-election for her independent judging. Now judges are elected for a non-renewable term of 9 years. However, it seems that there are other ways to put pressure a sitting judge. One of these methods is perhaps investigating their relatives in a case in which the state had complied with its human rights obligations. If states are interested in maintaining independent legitimate human rights tribunal, its judges should be properly protected.

The judges are called to deliver judgments often against their home states and their protection is very limited, especially post-retirement. Such post-retirement guarantees have been discussed on a number of occasions but to no avail. There are instances when independent and critical judges find themselves unemployed after they end their tenure in the Court. Although Protocol 14 managed to limit some opportunities for interference into the work of the Court, it did not eliminate all of them. One might argue that the political branch of the Council of Europe should react to the attempts to put pressure on the ECtHR judges.

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