On June 13, 2018, the National Prosecution Academy of Ukraine hosed I International Scientific and Practical Conference «European Court of Human Rights Case-Law in the Work of the Prosecutor’s Office and the Court: Challenges and Prospects» organized by the Academy in cooperation with the Prosecutor General’s Office of Ukraine and the Association for the Development of Judicial Self-Government of Ukraine.
The main purpose of the event was to facilitate the dialogue between judges and prosecutors on the implementation of decisions and the application of the European Court of Human Rights (ECHR) case-law as a source of law.
Representatives of the Prosecutor General’s Office of Ukraine and the regional prosecutor’s offices, the Department for the Execution of Judgments of the European Court of Human Rights of the Council of Europe Directorate General Human Rights and Rule of Law, the European Union Advisory Mission, the Supreme Court judges, lawyers, and scientists took part in the conference.
Deputy Prosecutor General Anzhela Stryzhevska congratulated the participants and emphasized the relevance of the conference in the activities of the prosecutor’s office and the court. «The prosecutor’s office and the court constantly face new challenges. There are no limits for improvement, so I hope that today’s work will be very useful», said Deputy Prosecutor General.
In his welcome speech, the Vice-Rector of the Academy Serhii Minchenko also drew attention to the urgency of the theme of the event, called on its participants for fruitful cooperation and wished the participants a productive work in that direction.
The moderators of the sessions of the event were the head of the department for the implementation of the European Court of Human Rights case-law into the prosecutorial activities of the Institute for Special Training Veronika Plotnikova and the head of the department of scientific and methodological support for the participation of prosecutors in the criminal proceedings of the Scientific Research Institute of the National Prosecution Academy of Ukraine Oleksandr Hladun.
Pavlo Pushkar, head of the Council of Europe Department on the Execution of Judgments of the European Court of Human Rights, joined the conference online. The subject of his report was the impact of the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights case-law and the implementation of the decisions of the ECtHR on the formation of the tasks of modern criminal justice in Ukraine. Pavlo Pushkar noted that «the influence of European practice on the formation of the CPC of Ukraine and in general on the development of criminal legislation is quite significant». His colleague Nadezhda Zadorozhnia noted: «… the doctrine is not torn off from practice, as there are positive changes in the way that Ukraine takes into account and fulfills the decisions of the European Court of Human Rights. In particular, during the preparation of the new CPC, the proposals of the ECHR were taken into account».
Deputy Minister of Justice of Ukraine – Commissioner for Human Rights of the European Court of Human Rights Ivan Lishchyna highlighted the problems of conducting an effective investigation into the violations of articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, taking into account the conclusions of the ECHR and aspects of the preparation of materials by the prosecutor’s office to ensure the adoption of these measures.
The judge of the Cassation Criminal Court at the Supreme Court Oleksandra Yanovska told the participants of the event about the practice of the Supreme Court regarding the implementation of additional individual measures to enforce the judgments of the European Court of Human Rights issued against Ukraine, and raised the issue of rights to appeal decisions of the Qualifications and Disciplinary Commission of Prosecutors as an effective remedy: «… I understand that appealing decisions of the Qualifications and Disciplinary Commission of Prosecutors as an effective means of legal protection sounds like an oxymoron, because for this days it is an ineffective means of legal protection. The question arises: «Can a person appeal to the court and appeal against the decision of the Qualifications and Disciplinary Commission of Prosecutors?» I believe that a person can».
Ola Quarnstrom, an expert of the European Union Advisory Mission, spoke on the experience of Sweden in implementing the practice of the ECHR in the national legal system: «We (in Sweden – ed.) have specific methodological recommendations, which the prosecutor follows. For example, going to journalists, he/she pre-opens a specific page of the manual and knows what he/she can talk about and what is not, so as not to harm the interests of the investigation».
Head of the Department of Analytical and Legal Work of the Supreme Court Rasim Babanly highlighted general reservations regarding ways to implement the European Court of Human Rights case-law in the process of analyzing the Supreme Court’s work and confirmed the possibilities for cooperation with the prosecutor’s offices regarding the issues of familiarization with the translations of relevant ECHR practices.
Olena Drahan, deputy head of the Department for the Prosecution and Representation of the State’s Interests in the Courts of the Prosecutor General’s Office, noted the application by the prosecution authorities of the case-law of the European Court of Human Rights in the execution of court decisions.
Member of the Association for the Development of Judicial Self-Government of Ukraine, lawyer Liudmyla Volkova presented the subject «Decision of the ECtHR as the basis for legal liability of a judge» and raised the question of the fairness of bringing a judge to justice in connection with appealing his/her decision in the European Court of Human Rights: «The Venice Commission has emphasized on the fact that there should be professional freedom of interpretation of the law. Today, the law must be interpreted by judges in the context of the rule of law. But responsibility must also be, in particular, in the presence of the direct intention of a judge or his/her «blatant unprofessionalism».
The chairman of the Bahmatskyi district court Pavlo Parkhomenko and a member of the Scientific and Advisory Board at the Supreme Court Oleksandr Drozdov also joined the event online.
Pavlo Parkhomenko highlighted the practical aspects of the application by the national courts of the ECHR case-law as a source of law, emphasizing that «the application of the European Court of Human Rights case-law is, first of all, the application of their approaches and outlooks».
Oleksandr Drozdov presented an analytical review of the ECHR case-law in the criminal proceedings for 2016-2018.
The concept of «effective control over the territory» in the ECHR case-law, in particular the examples of the Autonomous Republic of Crimea and the occupied territories in the east of Ukraine, was addressed in the statement by Yelyzaveta Dzihora, a prosecutor of the Prosecutor’s Office of the Autonomous Republic of Crimea.
At the end of the conference there was a summing up. First of all, attention was paid to improving the efficiency of the prosecutor’s office in the context of implementing the decisions of the European Court of Human Rights and developing mechanisms for quality interaction of subjects of the practice of the ECHR.