On November 10-12, the VI International Forum on the case-law of the European Court of Human Rights was held in Lviv. It was devoted to the right to a fair trial.

Judges and lawyers of ECHR, representatives of the Committee of Ministers of the Council of Europe, well-known human rights defenders and experts in the field of human rights protection were involved in the work of the Forum. The Ukrainian Helsinki Human Rights Union was represented by Vitalia Lebid, a lawyer at the Strategic Litigations Center.

During the Forum, new trends in the case-law of the European Court of Human Rights; challenges related to the protection of human rights; progress in justice sector reforms; gaps and disadvantages of national legislation and practice were discussed.

The first day was devoted to the analysis of new decisions of ECHR. In particular, Anna Yudkivska, a judge of the European Court of Human Rights, delivered a speech “Big Brother is Watching You”? Reasonable Expectation of Privacy in a Digital Age”. She described what the “reasonable expectation of privacy” in the case-law of ECHR is, noting that the concept was first applied by the Supreme Court of the United States in the case of Katz v. United States (1967), which the European Court subsequently used in the proceedings Halford v. The United Kingdom (1997) ¹.

Mrs. Yudkivska noted the importance of distinguishing between content data and traffic data (metadata). The concept of metadata implies that a person should not have reasonable expectations about privacy regarding his/her metadata (namely where the call was made, how long the conversation lasted, etc.), since the person voluntarily provides these data to the service provider. This approach was formed 50 years ago by the Supreme Court of the United States, however, in the modern information age, such a concept does not work, because new technologies allow obtaining a huge amount of metadata, and find content data. This is exactly the problem, which ECHR is currently considering in the case of Big Brother Watch and Others v. The United Kingdom². Summing up the report, Mrs. Yudkivska emphasized that the situation, when our privacy is not protected from control and surveillance, is completely contrary to the Convention. The right to privacy is the achievement of a European legal culture, and it will disappear if we allow it. The fundamental right to control how we are facing the outside world is legitimate expectation that must be protected even in time of terrorism.

During the second day of the Forum, participants discussed some aspects of the right to a fair trial. In accordance with the interpretation of Article 6 of the Convention, in the case-law of ECHR, national courts are obliged to motivate their decisions. This topic was presented by Taras Pashuk, a lawyer of the European Court of Human Rights. He explained the ECHR’s interpretation of the concepts of “unreasonableness” and “unmotivatedness” of court decisions, the difference between the arguments of fact and procedural arguments. Opinions of the European Court on these issues are highlighted in the cases of Pronin v. Ukraine³, Voloshyn v. Ukraine⁴, Bendersky v. Ukraine⁵, Mala v. Ukraine⁶.

Also on the same day, Ivan Lyshchyna, Government Agent before the European Court of Human Rights at Ministry of Justice of Ukraine, spoke on the topic “Application of Article 1 of the First Protocol to the Convention by the European Court of Human Rights in situations of a military conflict”. In his speech, Mr. Lyshchina analyzed the case-law of ECHR on the issue of protection of property rights in conflict situations, which is an extremely topical issue for Ukraine. For example, these are the cases of Cyprus v. Turkey, Orhan v. Turkey, Sargsyan v. Azerbaijan. He noted that about 3000 cases related to violations of human rights as a result of the conflict in eastern Ukraine were received by the European Court until now. Fifty cases have already been communicated to the Government of Ukraine. As for the protection of property rights during the conflict in Ukraine, so far, no communication has been received by the Government, however, according to the Agent, it is obvious that a wave of such cases is expected in the future. Mr. Lishchyna, referring to the case-law of ECHR, noted that Ukraine had positive obligations to pay compensations for property that was destroyed or damaged as a result of the conflict. Thus, the state is obliged to develop an effective mechanism for the payment of such compensation. So far, such a mechanism has not been implemented by Ukraine. According to the speaker, the procedure for payment of compensations is under development.

During the third day, participants discussed the implementation of the decisions of the European Court of Human Rights by Ukraine. Among the speakers were Clare Brown and Pavlo Pushkar, representatives of the Department for the Execution of. Judgments of the European Court of Human Rights, and Hanne Juncker, Head of the Department of Justice and Legal Cooperation of the Council of Europe. The main issues discussed during the third day were as follows: 16% of all the cases that are currently under the consideration of the Committee of Ministers of the Council of Europe are cases against Ukraine; this is a very high indicator; the Committee of Ministers considers 80% of these cases according to an expanded procedure (complexity in the implementation process by the state, structural problems in the legal system); despite there is some progress in the reforms in Ukraine (Reform of the Supreme Court, amendments to the Constitution, development of new procedural legislation), there are many problems that need to be addressed urgently. In particular, the problem of non-implementation of decisions of national courts and creation of effective protection mechanisms (Burmych v. Ukraine), problem of duration of proceedings, ineffectiveness of investigations into cases of torture, poor conditions of detention in places of deprivation of freedom and inadequate medical care in such places are acute.

Text by Vitalia Lebid, a lawyer at the Strategic Litigations Center of UHHRU