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TIn September 1958 8 countries accepted jurisdiction of
European Court. On January 21, 1959 they conducted first elections for
members of the court. Within 43 years of existence of this court many
things have happened. In 1959 there were 15 judges, it 1981 there were
21. Since 1997 40 countries have had right to appoint judges. 10 countries
ratified the convention by 1953, and 20 countries by 1980. For now 40
countries joined this convention, 16 of them are situated to the west
of the line that was named 'iron curtain'. It happened that there were
no cases in the Court for a whole year. In happened 5 times - in 1959,
1963, 1964, 1966, 1977. During other years up to 1974 the Court did not
make more than three decisions. In 1982 the Court heard more than 10 cases,
and in 1998 they announced about the last case solved by the "old"
Court. The total amount of such decisions made till 1998 is 106.
New European Court for human rights began functioning on November 1, 1998
after the annuguration in Strasburg. Since that date the Court works permanently.
It functions instead of two previous institutions that ensured fulfillment
of the Convention for human rights and main freedoms - European Commissions
and European Court for human rights.
The role of the Court has significantly increased over the past years.
If in 1981 there were 400 lawsuits and 7 of which were solved in the Court,
then in 1993 there were 2000 lawsuits and 53 decisions. And in 1999 there
were 20000 lawsuits and 4250 decisions.
According to the chapter 1, article 46 of the Convention high treaty parties
bind themselves to complete fulfillment of the court decisions. Ukraine
has declaratively accepted jurisdiction of the Court - right to apply
to certain international institutions for protection of rights (4.4, article
55), and legally - when on July 17, 1997 it passed the law "About
ratification of the Convention for human rights and main freedoms of 1950",
1st protocol and protocols #2, 4, 7, 11 to the Convention. According to
this law Ukraine accepted all responsibilities mentioned in this international
legal treaty. In particular, it accepted European Commission's jurisdiction
(in questions of human rights that cover understanding and usage of the
Convention - article 46) on its territory without special agreement. Besides
this, Ukraine bound itself to fulfill all Court decisions in the cases
where it is one of the parties. The text of the Convention was officially
published only on January 10, 2001.
Data shows that by 1999 1257 Ukrainian citizens sought protection of their
rights at European Court, but only 770 temporary cases (dossiers) were
filed and only 4 out them were accepted to consideration. Out of mentioned
amount of temporary lawsuits against Ukraine there were 450 registered
and 300 were not accepted. Among the parties with the most amount of lawsuits
is Russia - 972, Italy - 992, France - 868, Poland - 691, Turkey - 655.
Not only new members of European council apply to the European Commission
for protection of rights, but as well citizens of England where there
are traditional democratic legal and court systems.
Most amount of complaints from Ukrainians is on conditions of jails, especially
for those awaiting death penalty. Many other complaints are about salary
and pension debts. The amount of complaints about violation of rights
of political parties and non-governmental organizations increase as well.
The judge of European Court from Ukraine Vladimir Butkevich thinks that
some of them have real chances to win.
The Court protects only those rights that are mentioned in the Convention
and protocols to the Convention. We should pay attention at the fact that
this important legal document does not have a word about right for lodging,
protection of environment or social and economic rights (but we cannot
think that this list will not be edited in the future). It is known that
all rights of the person need to be protected.
From all we said above we can see the problem - when exactly personal
rights are violated. In the practice of European Court, i.e. in its precedental
law, there is a principle: the right that you want to protect is given
by the national law… If you want to apply to the EC you should fulfill
such important conditions: the case that you send to the EC must pass
at least two levels of home courts. Even though the EC can consider the
lawsuit that did not pass national levels, but this case has to be of
national importance and limited in time.
The condition to use all home courts (internal national means of protection)
is the basic condition for the entire system of the Convention. But not
the less important condition is to use only effective means of protection.
The whole international system of protection of human rights can ruin
without proper and effective court systems inside the countries-members.
Another condition to lawsuits: the violation of rights had to happen after
September 11, 1997. Lastly, there should be at least 6 months between
the last home court decision and the date of filing a lawsuit to the EC.
When you file the lawsuit you should base only on articles of the European
Convention that the country violated. Only the lawsuits against illegal
actions of the government are acceptable. Lawsuits against individuals
or companies are not accepted.
The Court must register all lawsuits that correspond to conditions of
eligibility that are mentioned in the verdict part of the European Convention
for human rights and main freedoms. It clearly defines conditions for
inadmissibility:
· anonimous lawsuits;
· lawsuit that were reviewed in other procedures of international examination
or regulation;
· lawsuits with obvious misuse of rights: rude, offensive and aggressive
statements, or statements that can be considered to be political pressure
or propaganda, statements that incorrectly interpret conventional rights
and freedoms;
· lawsuits on cases of minor importance, ill-founded speculative petitions.
The Court accepts lawsuits from any idividual. This list is much broader
that the list in the national legislation of the countries-members of
European Council. For example, the right to apply to EC is valid for minors,
individuals with illegal status, mentally disabled people etc. They also
accept lawsuits from the groups of individuals and non-governmental organizations.
We would like to accent article 50 of the Convention that mentions financial
reimbursement. The Court practice has firm principles, but use of this
article has less firm and gradual character. Reimbursement is ensured
in three cases: material damage, nonmaterial (moral) damage and compensation
for court expenses.
The Court decision establishes violation of European Convention for human
rights and defines amount of "fair financial compensation",
this process takes from 2 to 4 months. The final decision of the Court
is sent to the Committee of Ministers of European Council, which ensures
fulfillment of the court decision. The threat to use sanctions againt
a government is a good way to guarantee fulfillment of the court decisions.
If the government does not fulfill the Court decision its membership at
European Council can be interrupted. For serious violations of rights
that government can be even excluded from members, but it had never happened
before. According to existing rules, there are fines for delay in reimbursement
of compensations. The case is closed when the plaintiff or his attorney
sends a letter informing that justice was restored. The government is
responsible for fulfillment of the EC decision by different means: its
authority, budget, other means and expenses. That is why many governments
try to solve the case without EC. We should mention that some years ago
it took about 5-6 years to solve one case in the EC, and now this time
will probably be limited to 2-3 years.
At the second summit of European Council in Strasburg in 1997 they formed
an action plan. According to this plan every government-participant of
European Convention will appoint its representative and form the team
for the Court. The representative must protect the rights of the government
from one side, and make decisions on elimination of any violations of
law, human rights and freedoms.
We would also like to accent that over 43 years of practice EC for human
rights worked out some very important principles.
The first - countries-participants of the Convention do not have right
to extradite a person to a country where he can be humiliated…
According to modern practice the government can be bound to protect personal
rights and freedoms through positive decisions, like informing citizens
about consequences of pollution of environment, protection of citizens
from intrusion from the side of other people, etc.
There is no doubt that protection of rights is the main responsibility
of the modern government.
The next principle is that the right to live (article 2 of the Convention)
and right not to be tortured (article 3 of the Convention) demands governmental
investigation in the cases when a citizen died in absurd conditions. If
the governemnt denies its fault in death of the individual and accuses
other individuals or organizations in causing death, then the government
is bound to do all necessary steps to investigate the case and find responsible
people.
But there are some problems that emerged during the practice of EC in
Strasburg. One of them - is a limit for evaluation.
The problem is that when we limit personal rights (for example in the
state of emergency mentioned in article 15 or situations described in
second paragraph for articles 8-11 of the Convention), the governemnt
has certain freedom in its actions when it evaluates the situation and
decided whether to do or not to do certain actions.
The same principle works when the government uses defensive measures or
carries out positive responsibility to protect individuals, as mentioned
above.
The EC must supervise if the government exceeds its commissions.
National authorities and national courts must remain the decision-maikng
instance. And if these decision have reasonable grounds they must be recognized
on the international level with obligatory conditions that there always
is limit for evaluation and that EC for human rights has power and responsibility
to control observance of this limit.
The question is not whether the individual remains unprotected, but what
is the level for national protection of the individual. The protection
has also to be supervised on the European level.
In the past the court in Starsburg was supervising proceedure of national
courts and will continue doing so. Article 5 and 6 in particular have
obligatory decisions and proceeding for national courts that must be fulfilled.
Despite Constitutional recognition of Highest jurisdiction of the Court
and the amount of lawsuits filed against our government, there still is
not legally determined procedure of fulfillment of EC decisions in Ukraine.
For the present time the most actual problem in Ukraine is freedom of
speech and thought in practice, which touches upon mass media.
Despite declarations that freedom of speech and thought are really free
in Ukraine, the court practice certifies that there is inequality of citizens
before the law and the court. We should support those journalists and
attorneys who find enough laws for proper protection of their rights and
ethic limits for their fulfillment.
If we analyze some laws, we will conclude that there are questions not
regulated by the law, for exmaple whether the journalists has to promulgate
the sources of his informaiton in court or not.
According to the article 44 of the law "About information" the
list of responsibilities among participants of informational relations
does not have condition for promulgation of sources of information.
The law passed on December 21, 1993 "About television and radio broadcast"
has responsibitied for TV stations that are listed in article 37. This
article ensures confidentiality to the person who provided information
or other materials.
But journalists of printed media have to promulgate the source of their
information if the court asks for it (paragraph 11, part 2 of the law
"About printed media of Ukraine). In this case, they do not mention
in what case the court has right to ask for promulgation of such information.
Journalists as people, who distribute information to the masses, have
similar rights and responsibilities regardless the way they distribute
this information…
Does the court have a right to demand that a journalists testifies about
the source of information?
The answer to such question was given by European court in 1996. The decision
Goodvin vs. Great Britain. The case was about court crime - the court
did not have a right to demand from a journalist to promulgate the source
of his information. Only if the court protects national rights of extraordinary
importance it has a right to demand such a thing from journalists. In
other case, the defendant can freely content against the court decision,
motivating it with the Convention and concrete Court decision.
July 1995, Lingster vs. Austria - the court determined that the press
has to "distribute information and ideas on questions that are discussed
on the political stage or cover other sphere of public interest".
The Court marked that "along with the right to distribute such information,
there is a right of community to receive this information" (the journalist
wrote critics about Federal chacellor)
But the journalist have to keep themselves in certain frameworks, the
Court thinks.
Janury 1999. Decision on Fresso-Ruare vs. France: "the jounalists
have to give information in a true way, basing on reliable facts and provide
this information clearly, according to the conditions of journalists'
ethics". So what are the frameworks for journalists when they criticize
political leaders?
January 1998, Dalban vs. Romania. Commission decided that any intrusion
into journalists' comments must be maximally limited in order "not
to allienate citizens from saying their critical comments"
Lingence case - a complaint for executive governmental institution. Excerpt
from the decision: "freedom of press gives public a chance to know
ideas and positions of political leaders and form their own opinions about
them".
Frameworks for acceptable criticism is broader when they cover politics,
but not certain individual. "A politic steadily and knowingly opens
himself to captious analysis of every word and deed from the side of journalists
and public, and as a consequence he should be very tolerant about it"
In some other cases that relate to the article 10(1) of the Convention,
the Court concluded that citizens who are not on the position of important
governmental workers need more protection from journalists' attacks in
some cases.
It is necessary that when a court makes its fair and grounded decision,
it considers responsibility to presentat clear and reliable information
from the side of journalists on the one hand, and tolerance of governmental
workers of different ranks, rational approaches of ordinary citizens to
protection of their own rights on the other hand.
It will allow to shorten amount of cases that are sent to appellation
courts, which is very important due to overload of courts with such cases.
Each lawyer who has law-enforcement practice (first of all judge, attorney
etc.) must consider: every incoming lawsuit has a chance and a right to
be sent to the European Court.
Having analyzed materials that go to European Court we can conclude -
we either do not have a good law school either citizens ask incompetent
attorneys to help when they don't know articles of the Convention
Very useful international institution that bases on longstanding experience
of democratic countries and legal systems of different governments, European
Court, was created for protection of rights and main freedoms.
It diligently fulfills this fucntion and will fulfill it in the future,
despite everything that people say about it.
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