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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Deferred Mechanism

11.02.2015

Oleksandr Dementiev, lawyer at Ilyashev & Partners Source: The Yurydychna Praktyka

The European Court of Human Rights may uphold a ruling on violation of human rights by deferring for a longer period the matter on awarding compensation

Human rights it is something inseparable from a person, something given to him by the nature from birth, in connection with which any restriction of human rights will always be very painful. Probably, all the rights given to a person by nature are guaranteed, perhaps, by the most important international instrument – the Convention on the Protection of Human Rights and Fundamental Freedoms. The state which ratified this international Treaty undertakes obligations on protection of these rights. This provision is stipulated by Article 1 of the Convention.

Inter-State complaints

European Court of Human Rights (ECHR, the Court), which has the exclusive authority to interpret the provisions of the Convention, in its judgment in the case of “X and Y vs. the Netherlands” (upheld as early as in 1985) noted that the State – a party to the Convention – within [its] jurisdiction confirms and recognizes all the rights and obligations stipulated by the Convention. It implies the obligation to ensure effective application of the rights specified in this agreement. Earlier in its judgment of 1979 in the case “Airey vs. Ireland” the European Court ruled that the state can not be limited to a passive role and it is impossible to draw a distinguishing line between acts and omissions. In short, these precedent provisions mean that the signatory State, based on Article 1, has both positive obligations – related to comprehensive protection of human rights and negative – related to abstaining from any actions meant to violate the law.

Should any other state violate the rights of Ukrainian citizens Ukraine, which ratified the Convention in 1997, has such an effective method of international protection as filing an inter-state lawsuit to the European Court of Human Rights. Having received a “stab in the back” by it pseudo twinned eastern neighbor, being faced with a massive violation of the rights of the Ukrainian people, our Government, without much delay, brought a lawsuit to the European Court. Moreover, there have been filed three complaints. This case is not something extraordinary for the Court. Despite the fact that before the conflict between Ukraine and the Russian Federation (for more than 60-year of its practice) the Court has reviewed only 16 inter-state lawsuits among leaders there were such states as Georgia – with three lawsuits initiated against Russia; Cyprus which brought four complaints against Turkey; in addition, Greece and the United Kingdom as well as Ireland and the United Kingdom had their cases reviewed by the Court twice.

The following also needs to be explained. At present, the media, society, as well as practitioners have doubts as to the quantity of lawsuits brought by Ukraine against Russia (two or three). According to the information officially published by the European Court, in the list of inter-state lawsuits brought by Ukraine against Russia not a single lawsuit has been reflected. For example, in his lecture for the members of the Grace Inn Honorable Society on November 07, 2014 the Chairman of the European Court Mr. Dean Spielmann said that the Strasbourg Court has three claims lodged by Ukraine against Russia under its review: the claim concerning the events related to annexation of Crimea and the military hostilities in the eastern part of the country, the claim concerning relocation of school children and two teachers from Ukraine to the Russian Federation who were returned a few days later, and the claim related to a man held in custody in Simferopol (presumably Oleg Sentsov). Dean Spielmann also said that in its review the European Court is having just four inter-state lawsuits (and one lawsuit related to fair compensation is awaiting to be reviewed). It can be deduced from the aforesaid that the abovementioned list is missing one complaint filed against Ukraine. According to the Chairman of the European Court in Strasbourg Court as of November 7, 2014 there are no other registered state-to-state claims.

Practical effectiveness

The European Court has already demonstrated its efficiency and effectiveness in the abovementioned case concerning relocation of Ukrainian schoolchildren to Russia. Thus, through application of interim measures under the Rule 39 of the Regulation, the Court literally ordered the Russian Federation to return the children back to the territory of Ukraine, which was done shortly. Ukraine was certainly offended by such actions of the so-called territorial troops, and, of course, of the Russian side. However, the greatest impact and the widest interest of the general public is drawn by the first and the most ambitious of the abovelisted claims of Ukraine against Russia.

Thuswise, on March 13, 2014 the Government of Ukraine initiated a state-to-state claim against the Russian Federation under Article 33 of the Convention. At the same time was filed a request on application for interim measures under Rule 39 of the Rules of Court to ensure that the Russian Federation, inter alia, will refrain from taking actions that could endanger life and health of the civilian population at the territory of Ukraine. Within the mentioned claim our Government made a declaration of simultaneously 12 Articles of the Convention, namely: Right to life (Art. 2); Prohibition of torture (Art. 3); Right to liberty and security (Art. 5); Right to a fair trial (according to the practice of the ECHR includes the right to a fair and comprehensive pre-trial investigation) (Art. 6); Right to respect for private and family life (Art. 8); Freedom of thought, conscience and religion (art. 9); Freedom of expression (Art. 10); Freedom of assembly and association (art. 11); Right to an effective remedy (Art. 13); Prohibition of discrimination (Art. 14); Protection of property (Art. 1 of the First Protocol to the Convention) and Freedom of movement (Art. 2 of the Fourth Protocol to the Convention).

At the same time the main question in the context of the mentioned move of Ukraine against the eastern aggressor is as follows: What can Ukraine count upon should the European Court sustain our claims?

Thus, the European Court may award a fair compensation to Ukraine in accordance with Article 41 of the Convention (“just satisfaction”) which may be represented as by recognition by the European Court of violation of the claimant’s rights as well as by the possible award of monetary compensation (in case of recognizing the fact of moral and material harm inflicted to the claimant). By the way, the European Court is aware of the cases (as for example “Glinov vs. Ukraine”), when acknowledgment of a violation in itself constituted sufficient compensation of non-material harm, which the claimant may have suffered. In my opinion, for Ukraine are equally important both components of the award that may be granted by the European Court.

For example, the importance of acknowledgement by the court of the same fact of violations inflicted to the rights of the Ukrainian people is, first of all, represented by systematization by international court of relevant events and provision of a clear legal assessment. The world will get a full-scale legal material with a detailed and consistent description of the event which is certainly very important in the first place in the historical context. In the process of preparing any historical material the experts will not have any conflicts related to parallel opposing interpretations; on the contrary, there will be clear identification of actions of one party violating the rights of the other party.

Not less important for Ukraine is the second (material) aspect of just satisfaction. It is directly linked to the complaints of our State against violation of property rights of the Ukrainian people as a whole. The Prime Minister of Ukraine – Arseniy Yatsenyuk – on his Twitter page announced that now the Ukrainian Government is claiming a trillion-fold loss (1 trillion 180 billion hryvnias). Over time, the amount of the mentioned damage will only grow, of course, given the continuing violations of human rights and increasing aggression displayed by the Russian Federation.

To achieve a more reasonable interpretation the European Court, if necessary, may also conduct its own investigation (with the possibility of going to the country which filed a claim or against which the claim was filed), and such State shall, in accordance with the Convention create all the necessary conditions to establish the facts set out in the claim.

Unfortunately, the European Court has no clearly defined periods established for reviewing the claims. In our case the duration of the review of the Ukrainian lawsuit may drag on for many years because of the volume of claims, specific circumstances, as well as the scale of the future alleged violations of the Convention. At the same time it should be noted that immediately after the moment when the claim was lodged to the Court in March 2014 the case was assigned a priority status.

In theory it can be assumed that the European Court already has enough convincing evidence to make an informed decision. Under such circumstances the court has the opportunity to uphold a decision concurrently declaring the fact of violation of corresponding human rights. In this case pursuant to the Regulations final resolution of the matter regarding the fair compensation may be postponed for a longer period.

 
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