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ЮрПодія. Візит Голови ЄСПЛ Ж.-П. Коста до України (30.06 – 1.07.2011). Промова

05.07.2011

Тема: Європейський суд з прав людини | European Court of Human Rights

30 червня – 1 липня 2011 року Голова Європейського суду з прав людини Ж.-П. Коста здійснив візит до України. В цьому зв’язку Суд опублікував прес-реліз та промову Голови Суду, виголошену під час міжнародної конференції, присвяченої практиці Європейської конвенції.

  • Source Visit to Ukraine. 05/07/2011: On 30 June and 1 July 2011 President Costa paid an official visit to Ukraine. President Costa was received by Viktor Yanukovych, President of Ukraine. He met Oleksandr Lavrynovych, Minister of Justice and Volodymyr Lytvyn, Chairman of the Ukrainian Parliament. He also met Vasyl Onopenko, Chairman of the Supreme Court and Anatoly Golovin, President of the Constitutional Court. He also visited an Academy of lawyers. During the visit, President Costa opened the First International Theoretical and Practical Conference (Speech of President Costa). President Costa was accompanied by Ganna Yudkivska, judge elected in respect of Ukraine and by Michael O’Boyle, Deputy Registrar.
  • Source Conference on “Problems of application of the Court’s case-law in the legal system of Ukraine”.

The role of the national authorities, especially the courts, and the future of human rights protection in Europe (Jean-Paul Costa, President of the Court) Kiev, 1er juillet 2011

Mister President, Excellencies,

Ladies and gentlemen,

This is my first visit to Ukraine and I am pleased that it has coincided with this important conference. And I would like to congratulate the organizers of the Conference. Ukraine is currently chairing the Committee of Ministers of the Council of Europe ; it’s very good to have taken such an initiative during that presidency.

Thanks to the Convention and the Court, human rights undoubtedly enjoy better protection in Europe.

The Council of Europe has grown to an extent that few would have thought possible in the early years of its existence, at a time when the European continent was cut in two. At the start of the 1990s, after the fall of the Berlin Wall, this “club” of traditional democratic countries welcomed new States, most of them emerging from the former Soviet Union and former Yugoslavia. The number of Contracting Parties to the Convention has doubled and now stands at forty-seven, pending the accession of the European Union, as decided in the Lisbon Treaty and authorised by Protocol 14.

Ukraine ratified the Convention on 11 September 1997, nearly 14 years ago. In quantitative terms, the bulk of the Court’s work today concerns applications from the newer member States (55% of pending cases come from five countries that have joined the system in the last fifteen years). Indeed, more than 8% of pending applications concern Ukraine. Compared with the population of the country and the total number of inhabitants in Europe, this figure is higher than the average number of applications before the Court. As regards Ukraine, between 1999 and 2010, 700 judgments had been delivered finding at least one violation of the Convention, an average of more than 60 a year. But none application was sent to the Grand Chamber : all judgments have been made by Chambers so far.

I would like also to say that the Court has had two Judges elected in respect of Ukraine : my old friend, Professor Volodymir Butkevych, the president of the organizing Committee of this Conference, from 1996 to 2008, and my younger friend, Ms Ganna Yudkivska, since 2010.

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While the Court has clearly been able to extend its role in its whole history, we should on no account underestimate the role which the national authorities must play in implementing the Convention. In practice, the States and the Court pursue the same goal: securing the rights and freedoms defined in the Convention and its Protocols and, where the Court is concerned, ensuring their observance in accordance with its function under Article 19.

I wish to devote my address today to this role of the national institutions, first by examining the national authorities in general and then looking more specifically at the judicial authorities.

I.     The role of the national authorities in general

1)     Prevention

The national authorities’ role is first of all a preventive one.

States are above all expected – and this is the very essence of their undertaking – not to interfere, or to interfere as little as possible, with the rights and freedoms enshrined in the Convention. In other words, they must discharge the obligations, both negative and positive, which they entered into on acceding to the Convention. The negative obligations mean that the States ought to abstain from interfering illegitimately with the rights and freedoms guaranteed by the Convention.

The State’s positive obligations, meanwhile, compel it to take the necessary measures – in particular, legislative measures – to protect people from infringements of their Convention rights. Such obligations may be either substantive (allowing the substantive right to be rendered effective) or procedural (conducting inquiries and investigations to identify those responsible for violations, whoever they may be).

2)   Redress

Redress for violations may also serve a preventive purpose through the introduction of remedies capable of putting violations right and preventing their repetition. Thus, in many States, mechanisms have been set up to compensate for damage resulting from the excessive length of proceedings. This has had the effect of easing congestion at our Court and is a good example of redress being afforded at national level. But such mechanisms have to exist, and they have to be effective. In the Action Plan adopted at the Interlaken Conference in 2010, the States Parties were called upon to introduce new legal remedies, whether specific or general, to ensure that any persons alleging a violation of their Convention rights had available to them an effective remedy before a national authority providing adequate redress where appropriate. This is in line with the provisions of Articles 13 and 35 of the Convention. However, when we say that States must put right violations of the Convention, we also mean that they must adhere to our Court’s case-law and ensure that its judgments are adequately executed, in particular by taking general measures and remedying situations that raise similar issues. One way of doing this is where the Court delivers a pilot judgment, concerning systemic violations.

The concept of a pilot judgment denotes a judgment in which the respondent State is advised that there is a structural or systemic problem which has given rise to a large number of similar applications or may do so in future. The pilot judgment thus calls on the State to

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introduce a mechanism to remedy the situation and to ensure that pending or future applications are dealt with at national level.

Since the first pilot judgment in the case of Broniowski v. Poland, the Court has applied this procedure in several cases and it is undoubtedly a solution which will continue to be developed in the future. This process involves a cooperation between the Court, the authorities of the respondent State and the Committee of Ministers of the Council of Europe, which is responsible for supervising the execution of our judgments. Two important pilot judgments have been given against Ukraine, Ivanov (2010) and Kherchenko (2011), and I expect that they will be implemented and followed up. The problems identified are non-enforcement of domestic judgments and right to freedom under Article 5 (and shortcomings in the judicial review).

II. Specific role of the judicial authorities

The judicial authorities are required in the first place to apply the Convention. This task is performed both by the ordinary courts and by the constitutional courts.

1) The ordinary courts

The ordinary courts are of fundamental importance since they will normally have jurisdiction to deal with matters concerning the Convention.

Often, changes to national law have been effected solely by the courts, in all countries. Legislative reform is not always necessary where the Strasbourg Court's objections relate to the approach taken by the domestic courts. Moreover, the courts can make the Convention prevail over national legislation in a more speedy, flexible way than the legislator itself when it matters with abrogating or amending pieces of legislation incompatible with the European Convention.

I must recall that the Convention imposes as a condition for admissibility of applications the exhaustion of domestic remedies, which means that the domestic courts have to deal with the complaints of the applicants before they are brought to our Court.

2) Constitutional courts

Our Court and the national constitutional courts protect rights which are largely the same, since the Constitutions do contain lists of rights and freedoms guaranteed at constitutional level, which are more or less similar to the rights protected under our Convention. Of course, this does not mean that there are no divergences, or indeed conflicts. Relations between constitutional courts and the Court are above all based on an increasing degree of interaction. The constitutional courts strive to bring their approaches into line with the Strasbourg case-law. They conform to it and, above all, are guided by it.

In the newer democracies of Eastern Europe, where important constitutional issues have yet to be sufficiently addressed at domestic level, recourse to the Strasbourg case-law often fills the gap.

At this juncture, I would like to make clear that our Court takes the utmost account of national constitutional courts’ decisions. It cannot, however, be satisfied at the mere existence of a decision and endorse it without further ado. To do so would be to abdicate its role in

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acting as a final authority on the interpretation of the Convention and in carrying out “European supervision” of national decisions.

As was emphasised at the Interlaken Conference in 2010, the European Court of Human Rights and the Council of Europe also have their own role to play and duties to discharge. I’ll concentrate today on the part of our Court.

III. Role and duties of the European Court of Human Rights

This entails both a judicial role and extra-judicial duties.

1) The judicial role

One of the fundamental principles underpinning the whole system is that of subsidiarity. The task of securing respect for the rights enshrined in the Convention falls first to the authorities of the Contracting States rather than to the Court.

However, the subsidiarity principle is not the only fundamental Convention principle. The Strasbourg system is also founded on a second “pillar”, that of the effectiveness of rights: the Convention seeks to guarantee rights that are practical and effective, not theoretical and illusory.

However, the Strasbourg Court has not to uniformize – rather to harmonize – the legal protection of human rights in Europe, as is illustrated by the doctrine (developed by the Court itself in its own case-law) of the State’s margin of appreciation, which may be greater or lesser depending on the particular field. The margin of appreciation relies on the legal and cultural traditions of the various countries. Of course, in some matters, no margin of appreciation can be granted : the right to respect of life (Article 2), or the prohibition of torture (Article 3) are absolute and universal. Even the right to a fair trial, guaranteed under Article 6 of the Convention, relies on principles, such as independence and impartiality of the domestic courts, which cannot be derogated. The protection of substantive rights would be illusory without an independent, impartial and transparent judicial system. I emphasize such an obligation, which is crucial in all countries and specifically in a country such as Ukraine.

Our Court’s case- law must equally be as clear as possible, so that the judgments it delivers, particularly those concerning new issues, can perform a pedagogical function. The Court frequently finds against a particular State when the same problem is encountered in the legal system of another State. If we want the Court’s judgments to be generally applicable and to have erga omnes effect, at least in practice, they must be clear and consistent. We are making every effort to guarantee this. Indeed, the Interlaken Conference, confirmed by the Izmir Conference in April of this year, strongly urged us to do so.

Beyond its judicial role, there is another important aspect: the Court’s extra-judicial function.

2)  The extra-judicial role

a)     Dialogue between judges

This takes a number of different forms. First of all, it involves dialogue between the Court and national supreme courts and constitutional courts. These contacts, including meetings

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such as this to-day Conference, are very useful as they give rise to discussions about our respective approaches. In particular, they provide an opportunity to clear up any misunderstandings.

b)  Information and training

We are also seeking to expand our efforts in these fields. An important aspect of the Interlaken Action Plan concerns the role which the Court should play in providing information to applicants about the Convention and the case-law.

Providing information to the public is an essential factor in the implementation of the Convention at domestic level. It includes information to the lawyers, to the Bar associations, to civil society and the NGOs. Tomorrow, I will address the Ukrainian Academy of Avocacy, and emphasize the role of lawyers in the protection of citizens’ rights and freedoms.

The Court has been working on improving our HUDOC database. We will also be expanding the publication of judgments in languages other than French and English. A series of factsheets has also been launched. They are regularly updated and are available on the Court’s website.

Finally, a guide on admissibility is now accessible to the public. It is chiefly aimed at professionals, in particular NGOs and bar associations, and provides them with guidance in proceedings before the Court. It too is available on our website.

Conclusion

National authorities have a decisive role to play in the future of human rights protection in Europe. Indeed, considerable emphasis was placed on their role in the Declaration and Action Plan adopted at Interlaken.

It is absolutely essential for the national authorities to play an active role, for instance in enforcing our judgments, and notably the pilot judgments. The Court cannot act on its own.

To conclude my presentation, I would like to say that, in the specific case of Ukraine, a great number of the violations found by our Court’s judgments relate to three articles of the Convention, namely Article 6 (right to a fair trial), Article 13 (right to an effective remedy), and Article 1 of Protocol 1 (protection of property). These problems have to be solved in the future. Admittedly, there are also even more serious violations, for example inhuman and degrading treatments, especially due to the conditions of detention in prisons, or violations of Article 5.

Ukraine has achieved improvements, and still must improve its record : it is one of the scopes of my visit to your country ; the Court is ready to assist the national authorities in attaining this objective.





 

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