The European Convention on Human Rights Has to be Amended

 

The European Convention on Human Rights*1 has to be amended.

An inadmissibility of individual applications causing their rejection by judges of chambers of the European Court of Human Rights is an object of this research.

This article aims to ascertain whether certain provisions of the European Convention on Human Rights pertaining to finding individual applications inadmissible, causing a rejection of such applications, fall in compliance with the principles of the Rule of law and with the general doctrine of Judicial Review.

A necessity for such a research of the topic ensues from multiple facts when judges of chambers of the European Court of Human Rights Extradition treaty violations, while acting in individual capacity ( i. e. the so- called-single judges) with competence mentioned in Article 27 of the European Convention on Human Rights adopt their decisions which prevent the Court from further making a thorough judicial scrutiny to merits and facts of applications received. One of the proving examples of this is the fact as follows.

Since 2007 the Kyiv Circuit court of Ukraine has not been hearing a law-suit of the Association of Independent jurists and journalists “The Democratic Space” (here and after – the Association) submitted against the Ukrainian State i. e. against: the president of Ukraine; the Cabinet of Ministers of Ukraine; the Ukrainian parliament; the Ministry of Finance of Ukraine; the state Savings Bank of Ukraine. The law-suit’s requirement before the court was: to enact a judgment which could state that the Ukrainian State violated the lawful right of Ukrainian nationals to receive back their economies ever deposited by them in banking facilities of the then Soviet Ukraine, prior to 02 January 1992, and which had not been returned to them since then.

Having ascertained that such a violation occurred on account of gross infringements by a judge of the Kyiv Administrative court of Ukraine, the Association required from the Highest Qualification Committee of judges of Ukraine to institute a disciplinary proceedings against that judge. But this committee, that deals, above all, with questions of bringing judges to disciplinary responsibilities rejected the Association’s request without any proving explanations.

Afterwards, on 10 July 2013, the highest Administrative court of Ukraine by virtue of its resolution rejected the Association’s law-suit against the Highest Qualification Committee of judges of Ukraine. Within a necessary deadline of the 6- month-term, the Association submitted an application to the jurisdiction of the European Court of Human Rights (here and after – the Court). In this application the association stated that Ukraine had violated the association’s human rights to fair hearing as it is foreseen by Article 6(1) of the European Convention on Human Rights.

On 20 March 2014 a chamber judge of the Court adopted a decision writing that the Association’s application was rejected by him because he had found it inadmissible and as such that might not be appealed before the Grand chamber of the Court. An examination of this very decision both as of some other decisions enacted on account of other applicants’ applications showed that such judicial decisions did not fall in compliance: with requirements: of Article 45 of the European Convention on Human Rights; with some democratic principles, such as: the Rule of law; the judicial review; and the transparency.

In 1977 influential political theorist and professor of law at the Columbia University, Law School, Joseph Razz in his “The Authority of law” in the second its edition”*2. identified constituent principles of the Rule of law as status when there should be clear rules and procedures for making laws, and when there should be transparency of legal provisions of the law and of judicial decisions. An examination of the aforementioned decisions of those single judges of the Court stated that the decisions lacked transparency of precise reasons for finding applications inadmissible. And if it is so, then these decisions have to be admitted as null and void and be repealed as invalid because they don’t fall in compliance with the Rule of law. But unfortunately the above-mentioned Article 45 of the European Convention on Human Rights, foreseeing a necessity to indicate reasons, for declaring applications inadmissible does not foresee any subsequent status for those applications fallaciously found by some single judges inadmissible as it is mentioned above, that certainly contributes to all judges not to indicate in their decisions precise reasons for declaring the applications inadmissible that in the long run contributes to a rejection of many individual applications without making a thorough expected scrutiny to merits and facts of the applications.

Judicial Review is the doctrine under which legislative or executive actions are subject to review by the judiciary. According to a definition, drawn in the “Black’s Law Dictionary” *3, judicial Review is defined as power of courts to review decisions of another department or level of government. As we see, judicial review is an essential element of any judicial system that cannot do without the judicial review. A chamber of the Court may be incontrovertibly acknowledged to be a department of the European Court of Human Rights under which the Grand Chamber, if assessing the latter by its core is the department of Higher jurisdiction, that can be substantiated by provisions of Article 43 of the European Convention on Human Rights, that states that within a period of three months from the date of the judgment of a chamber, any party to the case may request that the case be referred to the Grand Chamber that will have to decide the case by means of ruling a judgment. So if to admit, that the Grand Chamber has higher jurisdiction, then a chamber of a district Court has lower jurisdiction, like a lower department making an initial scrutiny of an application by virtue of reviewing the application with the object of finding an admissibility of the application. If so, then according to the democratic doctrine of Judicial Review, this chamber’s decision has to be also subject to judicial review by the Highest Chamber of the Court, i. e., – by the Grand Chamber on the basis of applying to the principle of the analogy of law as it is implied by the aforementioned Article 43 of the European Convention on Human Rights.

Only such a procedure will ensure an activity of the democratic principles in the European Convention on Human Rights in the process of making justice by the European Court of Human Rights.

Going out of all this, there are enough grounds to conclude that provisions of the European Convention on Human Rights pertaining to finding inadmissibility of individual applications don’t fall in compliance with the Rule of Law and with the other democratic principles of making justice as it is mentioned above. In order these provisions could fall in compliance with the Rule of Law and with the other aforementioned democratic principles, there should be made amendments as follow:

Article 45 of the European Convention on Human Rights should be supplemented by clause 3, reading: If reasons are not given for judgments and for decisions declaring applications inadmissible, then such decisions shall be declared to be null and void, i. e. – repealed by the Grand chamber of the European Court of Human Rights.

Further on: Article 43 should be supplemented with clause 4 reading that within a period of three months from the date of a judgmenta decision of a chamber, a party to the case whose application is declared inadmissible may request that the case be referred to the Grand Chamber for reviewing legality of an ascertainment of inadmissibility of the application. In case of finding such an inadmissibility to be illegal, the Grand Chamber shall repeal such chambers’ decisions by virtue of its judgment.