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29.09.2022

The Supreme Court published an extraordinary review of the practice of the ECtHR based on decisions taken against Ukraine

On September 15, 2022, the ECtHR published a series of decisions in which, having determined the statements to be inadmissible or recognizing Ukraine's violation of the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms, it formulated important conclusions that are of significant importance for the legal system of Ukraine.

With this in mind, the Supreme Court prepared an extraordinary review of the practice of the ECtHR, which describes the relevant decisions. For ease of use, all decisions (on substance and on admissibility) are systematized according to the articles of the Convention on the Protection of Human Rights and Fundamental Freedoms.

The head of the department of analytical and legal work of the Supreme Court, doctor of legal sciences, Rasim Babanly, prepared a detailed analysis of these decisions:

ZBYRANYK AND SMETANIN v. Ukraine (No. 453/21 and No. 9741/21) – in this decision on inadmissibility, you can familiarize yourself with how the ECtHR reacts to cases of abuse of the right to appeal to it, and also articulates its ethical and legal attitude to the obligations of representatives of the legal profession , who appeal to the ECHR. "Lawyers must understand that in view of the ECtHR's duty to consider allegations of human rights violations, they must exercise a high level of professional discretion and constructive cooperation with the ECtHR, not allowing the submission of unsubstantiated statements, and both before and after the start of the proceedings, carefully study all the details of the case, strictly adhere to all relevant procedural rules and strongly urge your clients to do the same. Otherwise, the deliberate or negligent use of the ECtHR's resources may undermine the credibility of the work of lawyers in the eyes of the ECtHR and, even if it occurs systematically, result in the prohibition of individual lawyers from representing applicants at the ECtHR on the basis of § 4 (b) Rule 36 of the ECtHR Regulation (see Stevančević v. Bosnia and Herzegovina (dec.), no. 67618/09, § 29, January 10, 2017) ".

PEDENKO v. Ukraine (No. 15058/14) – also a decision on inadmissibility. The applicant complained that the request for his detention was considered by Holosiivskyi, and not Pecherskyi District Court of the city of Kyiv, as required by the procedural legislation, according to the applicant. Conclusion of the ECtHR: "Even if we assume the presence of procedural flaws in the decision of the Holosiiv Court to keep the applicant in custody, the ECtHR, taking into account the arguments of the parties and the considerations mentioned above, concluded that these flaws were of a formal nature and in no way affected the legality of the decision on detention in essence ".

MEDVEDCHUK v. Ukraine (No. 32100/21) is also a ruling on inadmissibility. Within this decision, the ECtHR considered only the applicant's complaint under Art. 5 of the Convention (regarding the complaint under Article 6 of the Convention, namely, regarding the violation of the procedure for serving a notice of suspicion, the ECtHR recognized it as premature, as the criminal proceedings were still ongoing) on the lack of "reasonable suspicion" in connection with his house arrest. The applicant claimed that the suspicion was based on vague provisions of the Criminal Code of Ukraine and evidence collected in violation of relevant procedural norms by bodies that were not authorized to do so.

In addition, referring to Art. 18 of the Convention, taken together with Articles 5 and 6 of the Convention, the applicant complained that the preventive measure applied to him had ulterior motives, in particular "the removal of him as a member of parliament (who belonged to the opposition) from the political and social life of Ukraine."

"The ECtHR emphasized that the preventive measure chosen was house arrest and that the courts' response to the applicant's complaints and the reasons given by them for these decisions do not appear to be arbitrary or unreasonable. In general, the court's assessment of the question of choosing a preventive measure in the form of house arrest in the case of the applicant should be considered as a deprivation of liberty within the meaning of Article 5 of the Convention (see Korban v. Ukraine, no. 26744/16, § 139, July 4, 2019), which corresponded the main material and procedural guarantees of this provision (see, among other cases, Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, §§ 459–61, January 21, 2021) (paragraph 15 of the decision)".

Regarding the political motivation of the persecution, the conclusion is as follows: "Although high-ranking Ukrainian officials publicly stated that the applicant and some of his political allies helped the Russian authorities in their aggression against Ukraine, the National Security and Defense Council of Ukraine imposed economic sanctions against them in connection with this ( see paragraphs 3-4 of this judgment), which is not the subject of the ECtHR's consideration in this application, there is no evidence that the applicant's house arrest was tainted by arbitrariness or was part of a strategy by the authorities aimed at preventing him from carrying out political activities or "removing him from of public life" (compare Shmorgunov and Others, cited in this case, §§ 464-77) (paragraph 21 of the decision) ".

GORYACHYY v. Ukraine (No. 43925/18) – once again a ruling on inadmissibility. This case deserves an epigraph formed from a quote from the conclusion of the ECtHR in it: " Article 6 of the Convention does not go so far as to oblige national authorities to ensure the flawless functioning of the postal system ."

The administrative courts considered the applicant's claim to the Military Committee regarding the correction of the date of his release. The court of first instance ruled in favor of the applicant. The appellate court, while reviewing the case, sent to the applicant by registered letter copies of the decision on the opening of appeal proceedings and the defendant's appeal. In the same letter, the applicant was informed of the scheduled date and time of the hearing. The correspondence was returned with a note that it was not delivered.

The Court of Appeal considered the case in the absence of the parties. It reversed the trial court's decision, citing an incorrect application of the relevant law and rejecting the applicant's request to correct the date of his release.

" The ECtHR noted that according to the national legislation (Article 190 of the Code of Administrative Procedure of Ukraine), the appellate court had the duty to inform the applicant about the future appeal and to invite him to present his arguments. Unlike many other cases considered by the ECtHR, where there was no evidence in the relevant materials that proper correspondence was sent to the applicants (see, for example, Stryzhak v. Ukraine, no. 72269/01, § 39, 8 November 2005; Hudáková and Others v. Slovakia, no. 23083/05, §§ 30–32, 27 April 2010; and Lazarenko and Others, cited above, §§ 36 and 43), in that case the evidence presented by the parties showed that 4 in April 2016, the appellate court did send the applicant by registered letter a notice of the defendant's appeal. Therefore, it appears that the national court properly complied with the requirement established by national procedural law.

The ECtHR also noted that although the general concept of a fair trial and the fundamental principle of adversarial proceedings require that judicial documents be properly served on a litigant, Article 6 of the Convention does not go so far as to oblige national authorities to ensure the flawless functioning of the postal system ( see, for example, the above-mentioned decision in the case of Lazarenko and Others, § 37, and, in the context of Article 8 of the Convention, Foley v. the United Kingdom (dec.), No. 39197/98, 11 September 2001)".

MAKOVETSKYY v. Ukraine (No. 50824/21) – a case of imposing a fine for not wearing a protective mask in a public place. The applicant was fined 170 hryvnias (about 4.90 euros at the time). Two important conclusions.

Conclusion number one: “The ECtHR noted that there is nothing in the materials of this case that could lead it to conclude that the national courts acted arbitrarily or unreasonably in assessing evidence, establishing facts or interpreting national law. The ECtHR also indicated that the applicant, who was present at the trial in the court of first instance, essentially argued that the introduction of pandemic control measures, including the requirement to wear a face mask, and the subsequent actions of the police in imposing a fine on him were unlawful.

Conclusion number two: “ With respect to the applicant's argument that the police officer who imposed the fine was not a 'court established by law', the ECtHR reiterates its well-established case law that even if an administrative body adjudicating disputes concerning 'civil rights and duties" to a certain extent does not correspond to paragraph 1 of Article 6 of the Convention, a violation of the Convention cannot be established if the proceedings in this body "are subject to further control by a judicial body that has full jurisdiction and provides the guarantees of paragraph 1 of Article 6" (see Ramos Nunes de Carvalho e Sa v. Portugal [GC], No. 55391/13 et 2 others, § 132, 6 November 2018) .

GREBENYUK v. Ukraine (No. 25580/18) – in this case, the circumstances are somewhat more complicated. The national courts considered criminal proceedings against the applicant on his accusation that he, as the deputy chief of the regional police, illegally interfered with the right to peaceful assembly at the time of the events (November 2013 in Chernihiv).

The court of first instance acquitted the applicant. The court based its decision in part on the testimony of six lower-ranking police officers who were present during the dismantling and who testified that they did not personally see how the applicant directed the operation.

Instead, the appellate court, after reviewing the case and evaluating the evidence, issued a guilty verdict.

The gist of the applicant's complaint was that, while reviewing the case and ultimately overturning the acquittal and convicting, the court did not question those officers who had actually given exculpatory evidence against the applicant.

"… the issue in this case was whether the appeals court's refusal to take into account the testimony of six police officer witnesses without cross-examining them prejudiced the fairness of the proceedings against the applicant…

… the testimony of the six police officer witnesses in no way addressed the key element of the applicant's charges, namely that he instructed a subordinate officer to mislead the city authorities as to the risks to public order that the planned demonstration might pose. The subordinate officer himself was questioned by both the trial court and the appellate court. Although the court of first instance did not believe his testimony, in which he pointed to the applicant as the source of the information in the misleading letter and as the initiator, the appellate court accepted it (paragraph 14 of the decision).

"The ECtHR came to the conclusion that the applicant did not present a reasoned complaint that his conviction by the appeals court without re-examination of certain witnesses harmed the fairness of the criminal proceedings against him as a whole (paragraph 21 of the decision) ".

MK v. Ukraine (No. 24867/13) – the ECtHR established a violation of Art. 8 of the Convention in connection with the disclosure of information about the applicant's HIV disease. In this case, it happened that the military hospital where the applicant was examined and where her blood was tested and found to be HIV-positive did not properly inform the applicant of this disease, but instead informed her mother (although according to the law it was not required to these rights) and provided the same information at the applicant's place of work.

One of the important aspects in this case was the legislative aspect, namely, the application of the requirements of the subordinate regulatory legal act contrary to the requirements of the law:

"In this case, the national courts referred to the Regulation on military medical examination and medical examination in the Armed Forces of Ukraine, approved by order of the Ministry of Defense of Ukraine No. 2 of January 4, 1994 (valid until November 28, 2008), as the legal basis for processing information about the state of health of the applicant. The ECtHR noted that this Regulation was a public document that established specific rules governing the medical examination of military personnel and allowed access to data on their health status after examination by military medical commissions and commanders of the relevant military unit without establishing any exceptions regarding the diagnosis (see paragraph 25 of this decision) (paragraph 55 of the decision).

At the same time, the ECtHR observes that the application of the specified clauses of the Regulations regarding the diagnosis of HIV clearly contradicted the Law on HIV, which was referred to by the applicant and which provided for the special protection of HIV-infected persons and established an exclusive list of persons and institutions to which information about the HIV-positive status of a person can be provided. This Law did not contain any exception to non-disclosure in relation to military personnel for any purpose (see paragraph 24 of this judgment) (paragraph 56 of the judgment).

The ECtHR also stated that the HIV Law had the legal force of an act of Parliament, while the order of the Ministry of Defense was a subordinate regulatory legal act and therefore could not legally implement additional restrictions on the rights and obligations provided for by the law (paragraph 57 of the decision).

In these circumstances, it is difficult to understand why the Regulation should be considered to prevail over the HIV Act. Neither the national courts in their decisions, nor the Government in their reasoning, in any way considered this specific and important argument, which the applicant consistently expressed both in the domestic proceedings and in the ECtHR (paragraph 58 of the decision).

Ultimately, the ECtHR established a violation of Art. 8 of the Convention (right to respect for private and family life) due to the hospital's failure to inform the applicant about the results of the HIV test and disclosure of the applicant's positive HIV status to her mother and her place of work.

In addition to the above conclusions, the review contains a description of other legal positions of the ECtHR that are important for the legal system of Ukraine.

You can familiarize yourself with all reviews of the practice of the ECtHR prepared by the Supreme Court at the link.

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