In an interview for Den’, ECHR Judge from Ukraine Anna Yudkivska spoke of the cases against Ukraine which are heard by the Court in Strasbourg as a reflection of the problem issues in the country itself. In the first place, she said, were problems relating to the penal system and pre-trial investigations.

“I can’t give a general assessment of the human rights situation, I can only talk about how it’s seen by the Court on the basis of the applications which come in. If we consider the applications to reflect the legal problems in society, then in the first place we need to put problems with the penitentiary system and problems with pre-trial investigations – the almost exclusive preventive measure being remand in custody; torture of defendants; the lack of proper investigation into complaints of inadmissible methods of investigation. These are the most acute problems bearing in mind how standard they are. Being used to them hampers any attempts at change in this sphere, and these issues cannot be resolved solely at the legislative level, you need to change lawyers’ mentality.

(The Interviewer had initially mentioned the Amnesty International report which expressed concern over worrying tendencies regarding human rights and mainly harassment of human rights activists by the police).

Anna Yudkivska returned to the questions he raised, saying that, again, from the point of view of what reaches the Court, one cannot talk of a problem on a mass scale. “As far as I know, there are two or three such applications at the moment before the Court, one of which has already been communicated to the Government. Obviously such applications are usually examined as priority cases, after all the fate of human rights activists as “watchdogs of democracy” are followed by all international structures – PACE, the European Parliament and the UN have special co-rapporteurs on the situation with human rights activists”

“At present there are around 11 thousand cases against Ukraine awaiting examination by the European Court.

That’s approximately 7.5 percent of the total number of cases. In terms of number of cases, Ukraine is fourth. However these figures are in no way an indicator. We shouldn’t forget that our country is large and if we take statistics regarding the number of the population, then Ukraine would be around the middle and the leaders such countries as Slovenia and Lichtenstein. In fact those figures also are not an indicator of the number of problems but rather reflect certain traditions of legal culture, public awareness of rights and opportunities for upholding them.

The range is broad from the conditions under remand in custody to interference in the right to receive information or threat to health due to a dangerous environment. There are a lot of applications about what the applicants believe were unfair court proceedings, or unwarranted interference into property rights. The last judgement relating to Article 10 was quite interesting from a legal point of view. The Court drew attention to the lack of clarity in Ukrainian legislation regarding the term “circulation of information”, and in another case to the lack of adequate guarantees for journalists who use information from the Internet.

However in the figure of 11 thousand there are two elements of concern. One is the number of applications found inadmissible, this reaching 80 percent. The reason here is an incorrect understanding of the Court’s role, the content and scope of the rights guaranteed by the Convention, as well as the conditions of admissibility. The Court is still seen by many as the highest level capable of revoking or changing the rulings of domestic courts or even as a first instance who anyone who sees their rights as having been infringed can approach. The overwhelming majority of applications are submitted without qualified legal assistance and are accordingly badly substantiated or inadmissible because deadlines have not been kept. Such an insane number of inadmissible claims seriously impedes the Court’s work.

The second serious problem is the number of repetitive claims, so called clone cases which reflect structural problems, including those mentioned above. Here the reaction of the authorities to the failings that the Court draws attention to is vital.

One structural problem, for example, which prompted a pilot judgement was the case of Kharchenko v. Ukraine, over a violation of Article 5 – the right to liberty and security of person. The Court has on many occasions found violations of this norm in cases against Ukraine with respect to periods of remand in custody without a court order between the conclusion of the pre-trial investigation and the beginning of the court examination. Another problem involves decisions extending remand in custody at court stage with the period not specified, i.e. they basically just remand in custody rather than extending it. These problems, the Court has found, are linked with failings in legislation. Moreover, where there is long-term remand in custody courts cite the same grounds although after a certain period of time merely one well-founded suspicion that a person committed the crime is not sufficient to justify deprivation of liberty. The courts should provide other motives for continued remand. 

Recalling that the same infringements have been found in a number of prior cases, the Court has stressed that in view of the structural nature of the problem specific reforms in legislation and administrative practice are urgently required. What specific reforms are needed is no way within the jurisdiction of the Court to determine. That is decided by the country under the supervision of the Committee of Ministers of the Council of Europe. However in this case, the Court asked the government to provide information about the strategy adopted in this respect within 6 months of when the judgement comes into force.