Clarification from the Ombudsman’s Office in response to the changes introduced by ECHR for the procedure of submitting applications

Comments and statements of the Ombudsman News

The Ombudsman’s Office informs you regarding the following:

For the purposes of legal education in the field of human and civil rights and freedoms, forms and methods for their protection, as well as raising the legal culture of the population, the Office of the Human Rights Ombudsman in the Donetsk People’s Republic informs about the changes in legislation in connection with the introduction of the Law of Ukraine on the ratification of protocols.

On October 30, 2017, President of Ukraine Petro Poroshenko signed the Law on Ratification of Protocols No. 15 and No.16 to the European Convention on Human Rights and Fundamental Freedoms of 1950. By signing this law, Ukraine, represented by its officials, expressed its consent to bring about a number of changes to the Convention.

One of the innovations is the reduction of the period for filing an application with the European Court of Human Rights. In accordance with Part 1 of Article 35 of the Convention, the ECHR may take a case to consideration only after national legal remedies have been exhausted, as provided for by the generally recognized norms of international law. Earlier, the application was to be filed within six months from the date of the final decision on the case by national judicial authorities. After the Protocol No. 15 has been adopted, the above-mentioned period has been reduced to four months.

Guided by the above, we would like to draw the attention of citizens who want to apply to the ECHR to protect their rights and legitimate interests to the changes now in force, because there is much less time now for the preparation of the relevant documents and for filing a complaint.

Clearly, the provision of the Protocol regarding the reduction of the period of a complaint submission to the ECHR will affect the quality of the applicants’ preparation. Legal position of the claimant, stated in the statement of claim, must be grounded, reasoned and supported by evidences, which requires a lot of time. Subsequently, the number of citizens who intend to apply to the ECHR will decrease by several times because the new four-month period for applying to the ECHR is insufficient.

Another change, according to Protocol No. 15, deals with assigning the jurisdiction in the consideration of the case in favor of the Grand Chamber.

In accordance with Article 30 of the Convention, if a case pending before the Chamber touches upon the issue of interpretation of provisions of the Convention or the Protocols thereto, or if the decision of the issue may contradict an earlier judgment of the ECHR, the Chamber (consisting of seven judges) can relinquish jurisdiction in favour of the Grand Chamber (consisting of seventeen judges), if neither side objects to it.

Earlier, the referral of the case to the Grand Chamber was carried out only upon mutual consent of the parties to the trial, but upon amendments introduced by Protocol No. 15, the relinquishment of jurisdiction does not require the consent of the plaintiff and the respondent and is left at the discretion of the judges of the Chamber, which restricts the rights of the parties to the expression of their will in this matter.

Protocol No. 16 to the Convention regulates the right of Supreme Courts and Tribunals of the High Contracting Party (Ukraine) to request advisory opinions from the ECHR on the principles concerning the interpretation or application of the rights and freedoms guaranteed by the Convention and the Protocols thereto.

Part 2 of Article 1 of Protocol No. 16 specifies that a court or tribunal requesting an advisory opinion may request that such an opinion be rendered only in the context of the case under consideration.

In addition, this request must be reasoned and include all the necessary information, namely, legal and factual circumstances of the case under consideration. It is also reported that a board of five members of the Grand Chamber is formed to decide whether to grant or dismiss the request for an advisory opinion.

It should be noted that the amendments allow the national courts of Ukraine apply to the ECHR for obtaining a reasoned explanation based on the knowledge and long-term experience of the judges of the international judicial institution in case of controversial issues in a particular case.

An advisory opinion is of an explanatory nature and is not binding. Therefore, it is on the court to decide whether to use this opinion or not.

In our view, the ratified Protocol will affect the quality of the work of the national courts of Ukraine that regards fair trial.