To the Head of the High Level Conference on the Future of the European Court of Human Rights in Brighton, UK, 18-20 April 2012-04-11

The Minister of Justice, Oleksandr Lavrynovych

Dear Oleksandr Volodymyrovych,

The Ukrainian Helsinki Human Rights Union which is made up of 30 human rights organizations who, among other things, provide legal assistance to victims of human rights violations, including representation of their interests at the European Court of Human Rights (the Court), is closely following the process of Court reform, and taking part in Council of Europe events linked with this process.

At the High Level Conference in Brighton, UK from 18 to 20 April issues will be discussed regarding reform of the European Court of Human Rights, the need for which is prompted by the Court’s overload.

As one of the countries producing the largest number of applications to the Court and partially responsible for the “crisis” under discussion, Ukraine should play a prominent role in maintaining an effective Convention system.

The Brighton Conference continues the Court reform process embodied in the creation and entry into force of Protocol No. 14 to the Convention. Although the Court’s workload and the timeframe for its examination of cases remain a problem, measures linked with implementation of the Protocol have resulted in some progress with the number of manifestly inadmissible applications which make up over 90% of all applications pending judgement being reduced. Work is containing on reforms of the Court’s working methods which it is hoped will help ease its workload. According to the previous declaration on these issues made at Interlaken and Izmir, the results of the Court reform will be assessed in 2015.

The present high level conference for discussing further reform of the Court is being organized by the United Kingdom within the framework of its Chairmanship of the Council of Europe’s Committee of Ministers. In January 2012 Britain’s Prime Minister David Cameron made public key initiatives on reform of the European Court of Human Rights. This was followed by the release of a draft Declaration which is planned for adoption at the Brighton Conference.

We welcome the emphasis given in the draft declaration to States Parties’ duty to implement the obligations undertaken under the Convention on the Protection of Human Rights and Fundamental Freedoms, especially to the obligation to create and support effective remedies within the country. In our view reform of the Convention system via national implementation of its norms is the only way out of the present “crisis” and one of the main objectives behind the creation of a European system of human rights protection. We believe that reform of the Court and the Convention system as a whole should develop down this road and we support initiatives aimed at developing practical measures encouraging States Parties to conscientiously fulfil their obligations under the Convention, in this case reducing the reasons for applications to the Court.

In this context we consider that making Court judgements regarding interpretation of the Convention mandatory for any State Party regardless of whether the given State was a party to the case (erga omnes effect) will make a considerable contribution to effective functioning of the Convention system and help reduce the number of applications to the Court.

We must, however, point out that the draft Declaration contains certain proposals which give grounds for concern. These include the proposal aimed not at reducing the reasons for applications to the Court, but at curtailing the right to individual application and restrictions on the Court’s jurisdiction.

We would note that suggestions such as reducing the time limit for submitting an appeal (Item 23 a of the draft declaration); restricting the right to submit applications via the mechanism for advisory opinions (Item 19); removal of the reservations on the application of the criterion of “significant disadvantage” (Item 23 of the draft) will not lead to a reduction in the number of applications to the Court, but will significantly weaken the right to individual applications which is an integral element of the Convention mechanism.

We consider that the insertion in the Convention of an additional definition of “manifestly ill-founded” set out in Item 23 of the draft Declaration will not reduce the Court’s workload. Virtually every case examined by the Court on its merits concerns the question of correct application by national bodies of the Convention in the light of Court case law. Artificially changing this issue into a question of admissibility will therefore reduce transparency and foreseeability of Court practice which will lead to an increase in the Court’s workload.

We would warn against any attempts to use the doctrine of “a margin of appreciation” and that of “subsidiarity” which have been developed by the Court and are used with exemplary consistency in order to narrow the Court’s jurisdiction.

We are convinced that the “crisis” with the Court is merely evidence of the crisis in implementation by States Parties of their obligations under the Convention. Any reforms therefore aimed at restricting the right to individual applications and reducing the Court’s jurisdiction will merely be an attempt to close ones eyes to the problems and not resolve them.

We urge the Ukrainian Delegation to the High Level Conference in Brighton to not support initiatives aimed at restricting the Court’s jurisdiction and reducing the right to individual application.

At the same way we call on the Ukrainian Delegation to support initiatives aimed at ensuring the following priorities:

providing additional resources for the Court Secretariat and Committee of Ministers of the Council of Europe for carrying out the reforms envisaged in Protocol No. 14 to the Convention;

carrying out reforms aimed at enforcement of Court judgements and of the Convention at national level;

improving the quality and transparency of national procedures for selection of candidates for the post of European Court of Human Rights Judge.

Yours sincerely,

Arkady Bushchenko, UHHRU Executive Director

Yevhen Zakharov, Head of the UHHRU Board