Congratulations on the 70th anniversary of the European Convention on Human Rights!
Today, November 4, 2020, marks the 70th anniversary of the signing of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Since 1950, the European Convention on Human Rights (ECHR) has been the most important document in the international human rights system. From its first day, the Convention has served as a guide for defining the ideals and values of democratic societies and a foundation for the development of the rule of law.
Since it entered into force, the Convention has adopted 16 Protocols, which have become an integral part of it. The protocols expanded the range of guaranteed human rights and freedoms and improved the mechanism for their protection.
The Convention became the foundation for the creation of a whole set of international legal regulations in the field of human rights and freedoms, protection of its legitimate interests and needs, and observance of the rule of law and democracy.
The European Convention on Human Rights is a living instrument for everyone to protect their rights, as stated in the new Council of Europe booklet.
To date, the Council of Europe has developed and adopted more than 200 conventions and agreements aimed at protecting and realizing the fundamental values of human rights, democracy and the rule of law.
All 47 member states of the Council of Europe have signed the Convention.
Today, the Convention protects the rights of about 830 million people in Europe, including Ukrainians.
The primary responsibility for respecting the rights enshrined in the Convention rests with the governments, parliaments and courts of each country.
The European Court of Human Rights (ECtHR) was established to monitor the observance of human and civil rights and freedoms. The Court acts like an airbag. The Convention guarantees specific rights to everyone, and the ECtHR considers its provisions as rules of direct action. Individuals can lodge a human rights complaint against any of the 47 Member States with the Court in Strasbourg after they have used every opportunity to appeal at a national level.
If the European Court finds that the applicant's human rights have been violated, the State concerned must provide justice for that person. The state may also take measures to ensure that such cases do not recur. The action taken by the national authorities in response to a judgment of the Court is under the supervision of the Committee of Ministers of the Council of Europe.
At the same time, the human rights enshrined in the European Convention are protected in various ways in countries. The principles of the Convention and the case law of the European Court of Justice are taken into account in judgments given by national courts, in legislation passed by parliaments, and in decisions of national authorities. Thus, the decision of the European Court is only one of the ways to protect human rights in Europe.
Thus, with the adoption by the Council of Europe of the Convention for the Protection of Human Rights and Fundamental Freedoms on the European continent, the process of creating a qualitatively new European system for the protection of human rights and freedoms began. The Convention has become an essential component of the development of national legal systems of European countries, an extremely influential factor in the involvement in these systems of fundamental values and norms for the protection of human rights, the rule of law and democracy.
On July 17, 1997, the Verkhovna Rada of Ukraine ratified the ECHR, which entered into force for Ukraine on September 11 of the same year. Due to this, Ukrainians have the right, after using all national remedies, to file a complaint about the violation of Ukraine's rights and freedoms guaranteed by the Convention to the European Court of Human Rights.
To support Ukraine in fulfilling its obligations as a member state of the Council of Europe, Action Plans have been implemented since 2005 - strategic program documents with a certain period of validity. The Council of Europe Action Plan for Ukraine for 2018-2022 is currently being implemented. The Plan implements a number of projects to promote respect for human rights, democracy and the rule of law in Ukraine.
The Project is focused on the prevention and supports pillar of the Istanbul Convention.
ECHR recognizes violation of the right to respect for private and family life as violation of human rights (Art. 8). The decisions of the ECtHR in cases of domestic violence guarantee the security and protection of fundamental human and civil rights and freedoms, including the right to life, liberty and security of person, respect for private and family life, fair trial, legal aid.
On 3 September 2020, a Ukrainian woman won a domestic violence case in the ECtHR for the first time. The ECtHR issued a decision in the case of Levchuk v. Ukraine (app. no. 17496/19) and obliged Ukraine to stop violating Iryna Levchuk's right to respect for her private and family life. The ECtHR found a violation of Art. 8 of the Convention on Human Rights and ordered the payment of satisfaction: 4,500 euros (non-pecuniary damage) and 1,150 euros (costs and expenses).
The Project focuses on supporting Ukraine in strengthening its response to child sexual exploitation, including in the digital environment, promoting child-friendly practices with focus on ensuring the rights of child victims and witnesses in proceedings and promoting the rights of the child in the digital environment.
The Convention does not expressly contain provisions specifically aimed at protecting the rights of the child with the exception of Article 5 § 1 (d), which, under certain circumstances, authorises lawful detention of minors; however, the scope of the rights granted by the Convention is such that they can be used by any individual, regardless of age or other characteristics. Although the text of the Convention makes few specific references to children, its articles have been used by the European Court of Human Rights to protect and promote children’s rights. Individuals, including children, who are victims of a violation of the rights and guarantees set out in the Convention may apply to the Court. The ECtHR, when considering cases of violation of children's rights, refers to the rules of the ECHR as a basic document.
The case law of the ECtHR and the European Committee of Social Rights illustrates the many situations in which children’s rights are at stake. In recent years, the Court has found a range of violations of the ECHR with respect to children, for instance of Article 8 (Right to respect for private and family life), Article 9 (Freedom of thought, conscience and religion), and Article 14 (Prohibition of discrimination).
European Convention on Human Rights and European Social Charter constitute the core of the human rights structure of the Council of Europe providing for civil, political and social rights. "Promoting social human rights as a key factor of sustainable democracy in Ukraine" Project inter alia contributes to the effective execution of the ECtHR judgments, which have social rights dimension.
In particular, the Project recently presented the Analysis of the national legislation of Ukraine providing for social benefits in the context of execution of the European Court of Human Right judgements in Burmych and others v. Ukraine group of cases, other ECtHR judgements on non-enforcement of decisions of the Ukrainian national courts on social issues.
The ECHR provides outstanding effective tools for human rights protection of internally displaced people (IDPs). Relevant jurisprudence of the European Court of Human Rights has been carefully reviewed and demonstrated in the article-by-article Handbook on Protecting IDPs under the ECHR and other Council of Europe standards. Due to comprehensive trainings including distant learning HELP course on internal displacement judges and leading lawyers enhanced their day-to-day application of the ECHR and the ECtHR case-law on IDPs rights and freedoms in their practice.
According to the United Register of Court Judgments, in 2018-2019 national courts refer to the relevant European standards in 50% of all IDPs related cases. This is three times higher than in 2016-2017. Over 90 % of such kind of judgments are decided in favour of IDPs, showing a significant and rapid improvement as the result of consistent capacity-building and advocacy. Also, the concept of positive obligations of the State serves as a doctrinal ground to justify the scope of obligations of Ukraine to secure human rights of those residing on its temporary occupies territories.
The Court jurisprudence made Ukrainian government to change drastically its initial approach and to set out a compensation mechanism for destroyed housing in the aftermath of armed conflict. Within the follow up Project the Council of Europe will further foster application of the Conventional standards on human rights protection for IDPs and other conflict affected people.
The CoE standards in the field of anti-discrimination and protection of minority rights are enshrined in Article 14 and Protocol No. 12 to the ECHR and the relevant case law of the ECtHR.
The Project aims at strengthening the overall legislative and institutional framework for the protection of national minorities, including Roma, and minority languages, while strengthening the capacities and possibilities for effective participation in the decision-making processes by the national minorities’ in accordance to the Article 14 and Protocol No. 12 to the ECHR and the relevant case law of the ECtHR.
ECHR and the case-law of the ECtHR are the standard-setting roadmap for key players in the field of ill-treatment and other serious human rights violations investigation. This roadmap is an unalienable part of the national legislation of Ukraine and an undeniable marker of country’s focus on democracy, rule of law, protection of human rights.
All methodology and content of Project’s capacity building interventions for investigators of the State Bureau of Investigation and prosecutors in effective investigation into torture and other serious human rights violations is shaped by the ECHR standards and the case-law of the ECtHR. 80% of our trainees already introduced or are determined to introduce practical changes in execution of their professional duties, thus, they demonstrate behavioral change. They therefore started better planning of investigative measures, applying acquired knowledge in reasoning and substantiation of procedural documents, to qualify respective crimes more correctly, as they evaluate themselves, and to investigate respective violations with more scrutiny. They are now as well better equipped to clearly identify the limit of justifiable interference with human rights.
The Project will pursue its work to strengthen human right protection in Ukraine through support to institutional and professional development of respective bodies for more effective investigation into human rights violations. As always, Project-offered support and expertise will be built on ECHR standards and case-law of the ECtHR.
The rights enshrined in the ECHR are of vital importance in the criminal justice field. Be it prohibition of torture or other forms of inhuman or degrading treatment or punishment, the right to liberty and security or the right to fair trial, they provide for the guarantees to ensure that the justice is instituted at all stages of the criminal proceedings with full observance of human rights.
The Project has provided expert assessment of various draft laws, by-laws or policy documents, with the aim to ensure that the national legislation and practice of Ukraine in the criminal justice field are in compliance with the ECHR standards. The Project has supported multiple trainings on various provisions of the ECHR and the criminal procedure of Ukraine in the light of ECHR standards for legal professionals, including prosecutors, lawyers and judges. The capacity building activities included translating and launching HELP courses (Human Rights Education for Legal Professionals) on Introduction to the ECHR and ECtHR and Article 5 of the ECHR.
The Project is supporting the launching event of the Ukrainian user interface of HUDOC, which will facilitate easier access to the case-law of the ECtHR for the Ukrainian legal professionals. The Project takes special care of designing and carrying out activities to contribute to the efforts for the execution of the ECtHR judgments against Ukraine that fall within the ambit of the criminal justice, which includes but is not limited to cases related to effective investigation of Article 2 and Article 3 cases, standards set under Article 5, reasonableness of length of criminal proceedings under Article 6 and more. In its future activities, the Project will continue to promote the ECHR standards through its activities with particular focus on these three main directions.
In fact, all project activities aimed at carrying out and implementing electoral reform, parliamentary reform or constitutional reform are reflection of the fundamental basis of human rights enshrined in the Articles of the ECHR. For instance, article 6 "Right to a fair trial", article 7 "No punishment without law", article 13 "Right to an effective remedy" and article 3 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms "Right to Free Elections".
Most of the ECHR articles formed the basis of the Rule of Law Report, adopted by the Venice Commission of the Council of Europe at its meeting in March 2011, and the Rule of Law Checklist (2016). There criteria are: legality, legal certainty, prevention of abuse of power, equality before the law and non-discrimination, access to justice. Today, the Project is working on adaption of the Rule of Law Checklist to Ukrainian realities and practices, so that these fundamental principles of the rule of law could become an integral part of our daily lives.
Under the Project the Handbook “Administration and You”, Handbook “Access to justice” and Overviews of the ECtHR for 2018 and 2019 were translated into Ukrainian.
These Handbooks and Overviews give complex overview of the standards of the Convention on human rights and case-law of the ECtHR for the respective periods.
Besides, number of analysis and expert opinions as to the standards of the ECHR were delivered by the experts of the Project. They concern standards of the ECHR in the sector of access to justice, liability of judges, functioning of free legal aid in Ukraine.
The Project also delivered expert examination of the legislative initiatives as to their compatibility with the standards of the ECHR. In particular the Project’s experts gave their expert recommendations as to legislative amendments in the sphere of the ongoing judicial reform.
The Convention in its Preamble stipulates that fundamental human rights and freedoms are best maintained by “an effective political democracy”. The ECtHR while deciding the case Mathieu-Mohin and Clerfayt v. Belgium stated that “since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 is accordingly of prime importance in the Convention system”. Article 3 of Protocol No. 1 guarantees “[…] the right to free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people […]”.
The Convention and the case law of the ECtHR on electoral matters became an undisputed legal instrument in Ukraine which influenced a lot its constitutional law, as well as national electoral legislation and the national court practice. Due to the support provided by the Project, respective Guide on the case law of the ECtHR on Article 3 of Protocol No. 1 became also available in Ukrainian. In addition to that, more than 220 national court decisions on electoral matters were analysed in context of the European electoral standards and the case law of the ECtHR, and more than 200 national judges from 22 oblasts of Ukraine enhanced their knowledge and skills on electoral dispute resolution in light of the case law of the ECtHR.
The Joint Project is designed to promote human rights compliant management of prisons, where the role of the ECHR is crucial, including better alignment of prison healthcare provisions with European standards.
It is expected that the prison management of Ukrainian prisons will be improved through introduction of contemporary approaches, modern prison management methods and instruments for more rehabilitative regimes to reduce reoffending. Moreover, the Project will continue to assist the national stakeholders to develop a comprehensive joint approach to deal with deep-rooted systemic human rights violations within the penitentiary system of Ukraine and a need for a multi-agency approach.
The right to freedom of expression and freedom of the media as protected by Article 10 of the ECHR are pillars of democracy. Article 10 defines three components of the right to freedom of expression and protects not only expressed ideas but also the form of expression. Article 10 defines the role of press in democratic society as public watchdog. Article 10 creates positive obligations for the State to establish an effective mechanism for the protection media actors in order to create a favourable environment for participation in public debate of all those concerned. The Project supports creation of information online platform for protection of journalism and safety of journalists and media actors in Ukraine. Also, the Project supports aligning Ukrainian media legislation to Council of Europe standards.