Once more about the exhaustion of the domestic tools of protection (Article 35 of the European Convention on human rights)

Everything stated below is the personal opinion of the author, but in no way the official viewpoint of the European Court, in the Secretariat of which the author works

Many authors wrote on the topic mentioned in the title. Yet, the recent publications (see, e.g., the article by Aleksandr Nagorny «Addressing to the European Court: the procedure of handing claims to the European Court on human rights» [Александр Нагорный «Обращаемся в Европейский суд: процедура обращения в Европейский суд по правам человека», Юридическая практика №25 (287), 24/06/03]), as well as my own professional experience, show that rather contradictory ideas about the procedure of handing claims to the European Court exist in the Ukrainian juridical sphere. It should be noted that recently the Court has issued a number of special decisions for regulation of this question in the light of the court reform-2001, as well as a number of judgments and rulings indirectly connected with this sphere.

The first decision of the Court, which regulated the exhaustion of the domestic tools of protection and the calculation of the six-month term of statute of limitation of the claim Kucherenko vs. Ukraine, was adopted on 4 May 1999 and concerned the pre-reform court system. The decision stated that the decision of the old cassation instance was «the final internal judgment» in the sense of Article 35 of the Convention, e.g. the supervision procedure was regarded as ineffective and was not taken into account for calculation of the six-month term.

The court reform of 2001 generated a number of problems, which were solved, to some extent, by three decisions of the Court adopted on 17 December 2002. Two of these decisions (cases of Kozak [No. 21291/02] and Pristavskaya [No. 21287/02]) stated that the opportunity to hand the cassations to the Supreme Court against the court decisions on the cases completed before 29 June 2001 was not effective and had not to be taken into account for calculation of the six-month term. Another viewpoint was expressed by the Court in the case Vorobyov vs. Ukraine (No. 27517/02) regarding the proceedings, which were not completed before 29 June 2001 or were started after this date. The Court pointed out that «according to the operating norms of the Civil-Procedural Code, the cassation complaint is similar to the tools existing in other countries-participants of the Council of Europe, it is accessible for both parts in a civil case and does not depend on the discretionary authorities of state organs». The Court also remarked that the decisions of inferior courts «may be appealed according the cassation procedure only within the term stipulated by law». As a result, the Court acknowledged the cassation instance to be obligatory for the exhaustion of the domestic tools of protection in the accordance with Article 35 of the Convention. This conclusion of the Court is applied mutatis mutandis and concerning the criminal proceedings.

Such are the rules of the exhaustion of the domestic tools of protection applied to the most of the cases coming from Ukraine. However, it should be noted that, firstly, there are some exceptions to these rules, and, secondly, the alternative rules are used for some categories of cases.

Here the word «exceptions» means: «the special circumstances that can relieve the claimant of the exhaustion of the domestic tools of protection, which may be accessible, effective and sufficient» (D. Kurdiukov. «An individual claim in the context of the European Convention on human rights and fundamental freedoms of 1950» [Д. Курдюков. «Индивидуальная жалоба в контексте Евро­ейской конвенции о защите прав человека и основных свобод 1950 г.», Воронеж, ВГУ, 2001, с. 139]). The Court more than once stated that the provisions of Article 35 should be applied without an excessive formalism, and the question about the exhaustion of the domestic tools should be solved taking into account the circumstances of every concrete case. This norm is applied, in particular, to the cases, where national court mechanisms are unable to take the decision on the complaint. The possible reasons are: the excessive duration of the proceedings and/or obvious inefficiency of the corresponding tools in a concrete case (see Selmuni vs. France, No. 25803/94 of 27 July 1999), internal instability caused by the activities of terrorist organizations or the state (see Akdivar and others vs. Turkey, No. 21893/93 of 16 September 1996). Yet, one must take into account that the claimant has to prove that the existing domestic tools are inefficient. Moreover, the doubt about their effectiveness or about the possibility of the successful consideration of the case are not sufficient for the exemption of the duty to exhaust the domestic tools (see А.В. vs. Netherlands, No. 37328/97 of 29 January 2002)

Along with the common procedure of the exhaustion of the domestic tools, there are a number of particular cases that demand the special consideration. So, before handing a complaint against the non-execution of court decision during a long time because of the passivity of the executive service (the majority of the cases against Ukraine, accepted by the Court Chamber, are connected with his problem according to Article 6 of the Convention), the claimant must turn, on the basis of the Law «On execution procedure» of 21 April 1999, to a domestic court with the complaint about the passivity of state executors. This procedure was established by the decision on the case Dzizin vs. Ukraine (No. 1086/02 of 24 June 2003). Yet, the situation becomes quite different, if court decision is not fulfilled for the reasons that do not depend on the executive service, but appear as a result of legislative activities or common administrative practices. Such situation will be considered in the end of my article.

Another alternative way of the exhaustion of the domestic tools is applied to the complaints on Article 3 of the Convention, which are connected with the use by militia of the illegal methods of obtaining proofs. In such cases the claimant must hand the complaint that militia officers tortured him (Article 127 of the Criminal Code) or went beyond their commissions (Article 365 of the CC) to the competent organ. If this organ refused to institute the criminal case or the criminal case was closed, then the claimant must appeal against this decision to court in the accordance with Articles 236-1 – 236-6 of the Criminal-Procedural Code. Frequently the investigation of such cases by the competent organs lasts too long and/or the activities of these organs are obviously insufficient for the investigation of circumstances, under which the claimant got the physical injuries. In such situation the claimant has the right to turn to the European Court before the exhaustion of the above-mentioned procedures, supplementing his application with the complaint about the violation of the right for efficient investigation, stipulated by Article 3 jointly with Article 1 of the Convention (see the decisions on the cases Assenov and others vs. Bulgaria [No. 24760/94 of 28 October 1998] and Labita vs. Italy [No. 26772/95 of 6 April 2000]).

The interesting commentaries on the considered question were made in the case Khokhlich vs. Ukraine (No. 41707/98 of 29 April 2003), where the inadequate conditions of upkeep of the convict condemned to the death penalty were regarded as a violation of Article 3: the Court stated that the complaint of the convict against the unbearable upkeep conditions «scarcely could result in the improvement of the conditions. Besides, the Government did not give any examples of the successful consideration of the complaints to court against the upkeep conditions» (item 15). Thus, the conclusion was made that the complaints handed by the convict and his mother to the prison administration were sufficient for informing the competent state organs about the existing violation and, correspondingly, for the exhaustion of the domestic tools.

In some cases the claimant must not exhaust the domestic tools of rights protection. Such situation occurs, first of all, when the government does not envisage any tools for the protection of a right stipulated by the Convention. For example, in the decision on the case Kudla vs. Poland (No. 30210/96 of 26 October 2000) the Court pointed out that Article 13 of the Convention envisaged the creation of the tools for the prevention of violations of the Convention or for granting the compensation of the damage inflicted by the violations. According to this decision, the state must create the tools for obtaining the compensation for the excessive length of court proceedings. It is obvious that the collection of such compensation for the protraction of consideration in a Ukrainian court (especially of civil cases) is a very rare exception. So, a claimant may turn with a complaint on Articles 6 and 13 of the Convention directly to the European Court, if the consideration of the case is, in his opinion, too long. However, one must remember that the Court is not constrained with the terms of consideration of cases, envisaged by the domestic laws, and exceeding of this term may not entail the acknowledgment of the violation of Article 6 (see Ziegler vs. Austria, No. 18882/91 of 17 November 1996). The Court determines the «reasonable» term of the consideration on the basis of three criteria: complicacy of the case, behavior of the parts (including and above all the behavior of the claimant) and the actions of the state organs connected with the case.

The second situation, in which the claimant must not exhaust the domestic tools of rights protection, occurs, when the violation of claimant’s rights is a result of application of the Ukrainian laws or common administrative practices contradicting the Convention. The most interesting examples of such situation can be found in the Court practices on the cases about the non-execution of court decisions. If a decision cannot be executed on account of the existence of legislative obstacles, the claimant may not be brought to responsibility for not-turning to court with the complaint against the executor (Voytenko vs. Ukraine, No. 189662). The Law «On introduction of the moratorium on the coercive realization of property» is a glaring example of such legislative obstacle. Another example is the refusal of a state organ to pay the sum, imposed by court, motivating the refusal by the absence of corresponding expense item in the state budget.

Probably, the considered rules will change with time. In particular, the questions concerning the economic process will be regulated, maybe the need will arose to introduce some changes in the connection with the newly adopted Civil-Procedural and Criminal-Procedural Codes.

Yet, I described the present-day rules of the exhaustion of the domestic tools of protection stipulated by Article 35 of the European Convention on human rights.