Surreal Resistance to Strasbourg over the Nechiporuk case
Strategic Litigation Center
On 14 September 2011 a judge from the High Specialized Court passed a procedural decision pointing out a number of failings in Nechiporuk’s application.
This means that the decision to allow the case to be reviewed is at least deferred. However the content of the decision raises the fear that our judiciary is as before seeking ways of not implementing European Court of Human Rights judgements. These fears arose after the reviews of the cases of Oleksandr Yaremenko and Dmytro Shabelnyk, but slightly abated when the Supreme Court passed its judgements on the cases of Leonid Lazarenko and of Kornev.
And now the baton for resisting judgements of the European Court has been seized by the High Specialized Court. The point here is to simply and technically prevent review of domestic rulings which violate human rights.
The following is an outline of the Court’s objections with a brief analysis.
Objection No. 1:
Only Nechiporuk can submit an application, whereas the application was signed not only by Nechiporuk, but by his lawyer, and it was sent from through the special unit of the penal colony, but from the lawyer’s address. The legislators in their reforming fervour did undoubtedly write in the Criminal Procedure Code [CPC] that an application for review of rulings on the basis of a European Court judgement may be submitted by “the person whom the judgement from an international judicial body was in favour of”. One can argue over the correctness of such a formulation, especially as to how well it takes into consideration the educational level of those applying the law.
Yet the legislators nonetheless do not say anywhere that “the person whom the judgement from an international judicial body was in favour of” may not use legal assistance and did not say that Article 59 of the Constitution had ceased to be in force when the person proved that his rights had been violated in an international court. Again, without any doubt, the legislators in this case are guilty only of not having taken into account that not all lawyers applying the law have the skills to systematically interpret the law, referring moreover to the Constitution. After all not all of them will think to glance not even at the Constitution, but even at the next paragraph of the same article of the law. And the last paragraph of Article 400-15 of the CPC which the judge cites states that “the application is signed by the person who submits it” with the confirmation of their authority to do so being attached. That means that the law itself assumes legal representation.
However, let’s just assume that some legislator really did sternly prohibit an application for review of court rulings being prepared and (o horror!) submitted by a lawyer. Where did the judge find the requirement that the application be submitted from a particular address? And one evidently needs to undergo special training to conclude that if as well as the applicant’s signature, there is also the signature of the applicant’s lawyer, then the applicant did not actually sign the application. The arsenal of ordinary logic has no means for reaching such a conclusion.
Objection No. 2
The demand to the Supreme Court is formulated incorrectly. This is a marvellous statement. it appears now that it is not the interested party who formulates the demand of the Supreme Court, but one of the judges of the High Specialized Court. Of course, the adversarial principle which prohibits the court from interfering with respect to how, when and in what form a demand is formulated has long become out-of-date and the judges of the High Specialized Court must not be guided by such archaic norms.
It should be remembered that when the Supreme Court – in examining the application from Larissa Karpenko to review domestic rulings on the basis of the judgement from the European Court – ran up against the issue of its competence, it sent a request for guidance to the Constitutional Court. They could have saved themselves the trouble. Did the judges of the Supreme Court really not know that it is not the Supreme Court and not the Constitutional Court, but a judge of the High Specialized Court who can single-handedly decree what falls within the Supreme Court’s competence, and what does not?
Objection No. 3
Not all of the rulings presented were certified in accordance with the Instructions on records management. This is not a new objection, and according to the observations, it is specifically the High Specialized Court which has pioneered the practice of demanding bound, numbered and stamped copies of court rulings. The most scrupulous study of legislation fails to uncover even the slightest hint that the judges of the High Specialized Court have discovered a requirement for applicants who in the majority of cases are in custody to provide “properly certified” copies of court rulings.
It is clear that the requirement is not based on the law. However maybe there is some kind of rational point to it. But no, the search for a point to it is also fruitless. After all the Supreme Court, having received an application to review rulings from domestic bodies, will nevertheless demand the entire case and has the possibility of studying the originals, not some, albeit “properly certified” copies. Or does the High Specialized Court think that the applicants will inundate the Supreme Court with fake rulings, knowing that the con will be exposed as soon as the Supreme Court receives the case?
Perhaps a second investigator will have more luck looking for the point in this requirement, but for the moment its existence is in no way established.
Objection No. 4
An authentic translation of the entire text of the European Court’s judgement, certified by the Ministry of Justice, has not been attached to the ruling. Of course the judge who without any difficulty or doubts can singlehandedly throw on the scrap heap the principle of adversarial proceedings, and determine the competence of the Supreme Court, would not understand how Nechiporuk might have problems obtaining the document demanded. It is undoubtedly much easier for Nechiporuk to obtain such a translation than for the judge to open up the Law on the Enforcement of Judgements and Application of European Court Case-law and read that, as it transpires, it is not the applicant, but the Justice Ministry that notifies the bodies responsible for enforcing the European Court judgements, in this case the Supreme Court and the High Specialized Court, about the substance, rules of procedure and timeframe for carrying out these measures, adding to the notification a translation of the judgement with certification of its authenticity! What prevented the judge from ascertaining this norm of the law before demanding that the prisoner whom she deprived of legal assistance carry out tasks difficult to achieve?
Objection No. 5
A letter from the Human Rights Ombudsperson stating that the European Court judgement has become final is enclosed, and not a letter from the European Court about the same. This letter is addressed to the applicant’s lawyer, and not to the applicant himself.
First a word in defence of the Human Rights Ombudsperson and European Court: we must bear in mind that none of them knew then that the judge had deprived the applicant’s lawyer of the authority to represent his client and provide him with legal aid. In their naivety they thought that only the client can remove his lawyer’s authority to represent him. Due to this misapprehension, both the Human Rights Ombudsperson and the European Court, according to generally established world practice, corresponded with the lawyer who, in accordance with that same world practice, is equated in the correspondence with his client.
What is more, if the judge had analyzed the sense of Objection No. 4 she would have definitely run up against a norm from the above-mentioned law which states that it is specifically the Human Rights Ombudsperson who “sends the applicant notification with an explanation of his right to initiate proceedings on review of the case…” Precisely this point, in accordance with domestic law, and not the Regulations of the European Court is deemed the moment of notification. It was for this that they introduced such a norm since not all applicants and even – as will become clear from the following objection – not all judges of the High Specialized Court know English or French. Therefore the receipt of a letter in a language you don’t understand can hardly be considered notification from the point of view of a person using their brain.
Objection No. 6
Nechiporuk must add to his application notification from the European Court, translated in the proper manner into Ukrainian. It would seem that judges of the High Specialized Court do not need to know English, but Nechiporuk must (see Objection No. 5). And how does the judge envisage the process of receiving the proper translation into Ukrainian? Having received the judge’s intelligent comments, Nechiporuk asks for a couple of hours off from the penal colony to go to a translation bureau? Or should the colony administration, struggling together, prepare the translation? Who is to decide whether the translation is proper? Once again the judge?