|17:58 Thu 13.09.18|
The coordinator of the Council of Europe's HELP program on the matters of the bar, Olena Sibilova: "The study of the Convention is a program for investing in the development of the advocate's personality"
Ukrainian statements in Strasbourg are leading not only by quantity, but also by the criterion of unacceptability. One of the reasons is the lack of advocates who understand the Convention's guarantees. To fill this gap, the defenders began to hone their skills in this area. In particular, using the HELP program provided by the Council of Europe. Olena SIBILOVA, the advocate, a member of the Ukrainian National Bar Association has told us about its efficiency and her practice in the European Court of Human Rights.
"Our goal is to achieve the application of the Convention primarily in the country, and only later — in the European Court"
— Olena Viktorivna, the last time we saw each other was in Kyiv at the opening of the first course of the Help program. How is the training of lawyers in the area of human rights going?
— Per se, the "Acceptance Criteria" program , which was introduced in July 2018, is ongoing and will be completed in mid-October. Subsequently, the participants who successfully complete the course will receive certificates from the Council of Europe and the UNBA.
— How many potential defenders of human rights are you going to release in October?
— 37 representatives of the legal professions are studying under the "Acceptance Criteria" program. However, the training course "Introduction to the European Convention on Human Rights", within the framework of which we consider the questions concerning the principles and philosophy of the Convention, the procedural issues of the Court and the rules of Court, including the eligibility criteria, is being taken by 120 individuals.
— After completing the first phase of Help, will the lawyers already have sufficient knowledge to appeal to the Court?
— The program participants will receive more than just general knowledge about the specifics of appealing to Strasbourg, we hope that they will implement these European standards in the national justice system first and foremost. Because the program contains industry-specific courses that will come in handy for advocates, who specialize in specific areas, for use in Ukraine. New program courses are being developed and the already existing are being updated, besides, a significantly greater number of online courses for self-study is already available in the Ukrainian language. According to the requests of the Ukrainian advocates, the lion's share of attention should be given to such HELP training courses, as the "Business Law and Human Rights", "Ownership", "Family Law", anti-domestic violence course, and course on children's rights. All of these courses present a next level for our lawyers. However, in each of these areas, the issue of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 1 of Protocol No. 1 should be also discussed. This is a "must-have" for Ukrainian lawyers.
— If in the future it becomes possible to change the vector of domestic courts with consideration of the provisions of the Convention, will the number of applications to the ECHR decrease?
— This is one of the intended purposes of the Council of Europe's HELP Program. We aim to extend it to all lawyers, not only advocates, but judges and prosecutors as well. To make the people who are at the forefront of human rights protection have a better understanding of the Convention and thereby reduce the number of appeals to the European Court. The officials have their own approved training program in which they study the Convention and the ECHR practices, and HELP courses constitute an additional source for better understanding. It should be fair to note that many judges and judge assistants are signed up for various HELP courses.
— But isn't it exclusively optional for judges and prosecutors to visit these courses?
— Yes, both advocates and other lawyers attend training courses only at their sole discretion. The UNBA primarily seeks to create a comfortable learning platform for advocates, but we always welcome members of other legal professions.
— Evidently, there are no special requirements to represent the interests in Strasbourg.
— No, but not every lawyer feels confident in matters of international law, some have insufficient knowledge and skills, or make mistakes when completing the form. It's a shame that a statement from a representative of the legal profession gets rejected and the case is not filed. That is why we want to resolve this issue, trying to work not for quantity but for quality. We believe that it is not enough just to issue a certificate of participation in the program, our goal is to achieve the application of the Convention primarily in the country, and only then - in the European Court.
— In terms of presentation there is yet another problem. In their applications, advocates can refer to those provisions of the Convention, which are not quite related to the case. And the judges are not eligible to change their position. This was brought up by the ECHR Judge, Hanna Yudkivska, when she has been to Kyiv.
— Depending on the errors, the application will be declared inadmissible or the Court will request additional information, spending too much time, causing review processes to last longer. After all, given the flow of applications from Ukraine, more attention could be paid to proper execution of the application form.
— One cannot do without an advocate at this point. When do they have to come to Strasbourg in person, and when would it suffice for them to just send the materials by mail?
— Consideration in the ECHR rarely happens with summoning of the applicants. The task of the advocate is not to be present during the proceedings, but to qualitatively prepare the application form and all annexes, to provide all responses to the requests of the Court in a timely and comprehensive manner. That is, the costs of the arrival of the defender should not be necessarily included. Even the applicants themselves arrived at the hearings only when the case gained resonance.
"The decisions of the European Court are a satisfaction in and of itself"
— When the applicant wins the case and violation of their rights has been established, are they entitled to demand a refund of court fees?
— The individuals themselves must declare on the court expenses, which they deem necessary to return. The Court separately considers the issue of just satisfaction, which includes matters of material and moral damage incurred, if such appeared, and separately - the judiciary and other expenses, penalties for default judgment, and in such case legal fees can be refunded if the individual has declared them and confirmed them with corresponding documents.
Usually the ECHR covers the material damage, presence of which was confirmed by the applicant's relevant evidence.
— And how is the non-pecuniary damage valuated?
— In each individual case, with consideration of all circumstances of the case. The situation here is similar to the definition of reasonable terms. Sometimes 8 months are enough, and sometimes 4 years are not enough.
— Does it occur that the applicant does not demand compensation for non-pecuniary damage?
— The decisions of the ECHR are a satisfaction in and of itself. Recording the violation of the law by the international jurisdiction should bring moral satisfaction to the applicant.
— However, the pilot decisions do not offer much consolation.
— The ECHR has put before us a mirror to look at ourselves and finally understand what is being repeated over and over again. After all, warnings and even quasi-pilot decisions did not bring the desired effect. This position of the Court is the last red line. However, despite this, systemic violations continue occurring same as before.
— Let's go back to the advocates. Does it happen that they receive royalties when the case is closed?
— It all depends on the agreement with the client whom they represent. On average, it takes 3-7 years of waiting for each decision, and during that time the economic situation in the country changes continually. Therefore, advocates usually valuate the services step by step and receive royalties as a result. Although there is such an unpleasant moment: some customers consider that a performed service is no longer a service and the decision, in principle, was made without the assistance of the advocate. Therefore, the latter evaluate their risks and opportunities for themselves.
— Does it provide grounds to claim that the mainly enthusiasts engage in protection of human rights in the ECtHR?
— In general, the protection of human rights is a more altruistic job. And I mean not only national courts, but cases in the European Court as well.
But we all understand that for the applicant, the ECHR is the last hope. Therefore, the matter of the royalties is not that critical. Besides, along with appeals to Strasbourg, lawyers are engaged in other practices, too.
"There is a certain imposition of the Convention"
— But the protection of individuals in the ECHR is considered to be prestigious.
— Undoubtedly, the most important is the possibility to use European achievements in the protection of human rights in Ukraine, this really is the highest level of development of a lawyer.
Therefore, the first task for the Council of Europe and for me as coordinator and coach of the Help program is the motivation of lawyers to study further and familiarize themselves with the Convention not just superficially, but delve into its subtleties.
We do not often understand the philosophy of the European Court of Human Rights, irrelevantly using the Court practices.
Even among the judges there is a requirement to indicate in the report how many times they referred to the articles of the Convention in their decisions. This is wrong, because the judge may indicate that they have already used, for example, article 6 of the Convention, and therefore fulfilled their plan. But the essence of the proper application of the Convention is not that. In the end, the number of Court applications indicates the citizen's living standards. We are constantly referring to countries that send a maximum of two applications to the Court or do not send letters to Strasbourg at all. For example, in 2017 there were no decisions against Albania, Andorra, Liechtenstein.
— And do the trainees analyze the course of the Court's decision?
— Every trainer has their own personal program. Personally, I see that the audience reacts better not to lectures, but to work in mini-groups and completing tasks, performing the practice analysis this way. Of course, we select an individual solution for every situation.
— However, is case law valid in the ECHR as such?
- In order to better understand the philosophy that I have already mentioned - judgment, notion, understanding of the convention and its application, we work with practice.
Taking a particular case as the example, we see that the Court had considered it on an individual basis, unless, of course, it fell into the category of "clones". Although, for it to obtain such a status, it also has to be examined.
- What is crucial in understanding this particular philosophy?
— Internal motivation. Sometimes it is extremely necessary for the individual to fill out an application form for the first time in their life, for example, by the end of the month. Sometimes this is a career issue when a lawyer believes that they have already achieved some success in their work within the framework of national justice. Someone just wants to explore this area in order to apply comparative law. In some cases, it is simply a despair: the advocate was engaged in a case from the first instance and started perceiving it personally.
But anyway there is a certain imposition of the Convention. Why imposition? Because we use it somewhat incorrectly, including in court decisions.
— Which is better for a human rights defender: to perfectly know the Convention or to constantly investigate the Court's practice?
- Lawyers often resort to citing regulations: Law No. 1358, Article 12! In the case of an ECHR advocate, this will sound, for example, as follows: Mala v. Ukraine decision, para. 38! But this does not mean that the essence of what is said is correctly interpreted.
The main thing for the defender is to learn how to determine if there is a violation of the Convention, and, if its principles are not respected, they should understand what the Court will pay attention to and what needs to be requested from it. Because it often happens that the description and motivation in the application form contain unnecessary facts, and at the same time they are insufficient.
— Will it be possible to reduce the flow of applications to Strasbourg with the adoption of Protocol No. 16 to the Convention?
— This is a very important opportunity - to seek clarification in order to immediately prevent the violation. However, it should be understood that the ECHR will not work exclusively for explanations to the Supreme Court. And it is important that the dispute, which is under consideration, does not "freeze" for a long time. Similar practice took place at the Constitutional Court, and then the case was suspended for years.
In this case, it would be desirable for such explanations to be provided as soon as possible in order to eliminate the uncertainty in the dispute, and appeals were to occur only in such cases where the Supreme Court actually does not know which decision to take. Because the ECHR is a subsidiary body, it will not take over the functions of the highest Ukrainian court.
In any case, there will be still enough work for the lawyers. The main thing is that they do it correctly. We want our advocates to start thinking about European philosophy: proclaim human rights not declaratively, but effectively. And put the client's interests first.
Studying the Convention both within the Help courses and via other instruments is an investment in the development of the advocate's personality. It is desirable that lawyers would not only hang just another certificate on the wall, but also adhere to the Convention's principles in all legal dimensions.
The article is published on the website of the "Law and Business" publication in"-36 (1386) 08.09—14.09.2018.
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