2012 08/05

Strategic lawsuits

Seminar “Strategic lawsuit practices in human rights organizations. The implementation of de facto rules of international law”, organized under the initiative of Homiel Centre of strategic lawsuit took place in Chernigov.

Participants of the workshop studied specifics of strategic litigation for 3 days and became acquainted with the experience of the Centre of strategic defense (Kharkiv). Much attention was paid to the specific problems and the facts of strategic affairs in Ukraine.

Aigul Mukhanova and Jana Zaikina, who represent the Center of Strategic Defense, identified several major activities of the Centre:

1. The right to life. Cases of failure to provide adequate medical care to persons in custody were identified among violations which required bringing strategic litigation and appeals to the European Court of Human Rights, (Biliak vs. Ukraine), the lack of effective investigation of the death (Masneva vs. Ukraine), refusal of admission the relatives of the deceased to the investigation and the possibility to take part in it (Mikhailova and others vs. Ukraine).

2. Torture and ill-treatment. Here matters related to the beating by police officers were mentioned (Afanasyev vs. Ukraine, Savin vs. Ukraine), extradition to countries where torture may be used (Dubovik vs. Ukraine), failure to provide replacement therapy after detention (so far there is no decision of the European Court). In the latter case we are talking about the fact that some drug addicts take medicines which help to avoid the use of drugs, but in prison they are not given these medicines (e.g., methadone), which causes physical and mental suffering, as well as in cases when, for example, cancer patients are not given painkillers.

Separately the problem of torture and ill-treatment in prisons was discussed. It was shown on the examples of the refusal to provide adequate medical care (Ukhan vs. Ukraine), poor imprisonment conditions – lack of ventilation, light, poor nutrition (Melnik vs. Ukraine), poor conditions during transportation.

3. Detention: arbitrary arrest, lack of reasonable suspicion for detention (Sinkova vs. Ukraine, under consideration by ECHR), illegal detention in the period between the end of the investigation and the start of the trial (Kharchenko vs. Ukraine), timely review of applications on reconsideration of restrictive measures (Kharchenko vs. Ukraine), detention for purposes other than provided by Art. 5 of the Convention (for the expression of opinions) (Sinkova vs. Ukraine)

4. Interference with privacy: the spread of confidential information by representatives of the State, failure to obtain personal information, a ban on meetings and monitoring of correspondence of persons in custody (Nazarenko vs. Ukraine), unregistered and unwarranted searches, illegal examination and diagnosis, the actions of the state, which led to the contamination of air, water, noise, vibration, damage and depreciation of the home (Grymkovskaya vs. Ukraine, Dubetsky vs. Ukraine)

5. A fair trial: the use of evidence obtained under torture (Balitsky vs. Ukraine), lack of access to a lawyer, a translator (Shabelnik vs. Ukraine), the duration of the trial, legal uncertainty and instability of judgments (Ivanova vs. Ukraine), the duration of default judgments (Ivanova vs. Ukraine), the lack of replies on the complainant’s arguments I the judgment (Pronin vs. Ukraine), the prosecutor unduly involved in litigation in civil and commercial disputes.

Ukrainian colleagues spoke about the results, obtained through litigation initiated by the Kharkiv Center of Strategic Defense. First, it is an introduction to the Criminal Procedure Code the chapter on the procedure for persons awaiting extradition. Second, changes in procedures of detention of people with mental illness and, thirdly, the development of a new Criminal Procedure Code.

Pilot decisions of the European Court was also discussed. In 2011 Rule 61 was accepted which governed the procedure for the adoption of the pilot decision, which showed the existence in the state structural or systemic problems that have led or may have lead to the mass filing of complaints. In other words, the Court has faced a problem of getting clone complaints on the same problems faced by different people. In its pilot decision, the Court defines the character of structural or system problems or other deficiencies, as well as the nature of the remedial measures that States must adopt at the national level I the framework of the operative part of the solution.

The procedure of taking the pilot decision has three objectives: to help the 47 European nations that have ratified the European Convention on Human Rights in solving systemic or structural problems at national level, to ensure more timely receipt of compensation for the persons concerned, and to assist the European Court of Human Rights to handle the load more efficiently and quickly, by reducing the number of similar (and usually complex) cases that should be explored in detail.

Belarusian human rights activists spoke about the experience of cooperation with the UN Committee on Human Rights. They gave examples of successful cases of Homiel Centre of strategic lawsuit and group of human rights activists from Vitebsk.

Lawyers participating in the seminar (or rather, ex-lawyers, after the events of December 2011) decided to be in the role of lawyers in the promotion of international standards on human rights. According to V. Bukshtynau, the reason for non-perception of international norms was inherent in the judicial system itself, developed in Belarus. Judges consider instruction much more important than the Constitution and international treaties. Several years ago the practice was introduced, when the Constitutional Court of Belarus determined compliance of the bill with Constitution before signing by Lukashenka. Absolutely all bills have been approving since 2008. How can the CC give an objective opinion at the request of an entity if, prior to this the law had already been approved by the CC?

An interesting comment was about the pardon. The Decree of the President says that a corresponded request should be filed for the grant of pardon. However, the decree contains an exception, which says, when a person is sentenced to death, the President can take a decision on his own initiative. In the Constitution there is the norm among the other powers of the president, which includes the right to grant pardons to the convicted and there is no reference to the laws, there is no mention about a written appeal for clemency.

Also, examples of successful strategic cases that occurred in their practice were mentioned. Rakhmanko was under house arrest, but his house arrest was not included in the term of imprisonment. Bukshtynau applied to different instances of the CC, and received a letter that the law should be changed. As a result, changes were made and the house arrest was counted.

Currently, the tandem lawyer –human right defender is very important, since the possibility of lawyers in the field of human rights are very limited.

An example of successful strategic litigation under the national judicial system, carried out by a lawyer was as follows: about 2000 the defendant was arrested in St. Petersburg by Belarusian law enforcement authorities and was delivered to Belarus. The charge was serious and he was sentenced to death. Complaints were left without satisfaction. Lawyers appealed to the UN Committee on Human Rights, claiming arbitrary detention, without an appropriate procedure. The Supreme Court brought a protest against the sentence, although not referring to the international standards. As a result, defendant was sentenced to 14 years.

Subsequently, the case was published in the Supreme Court’s magazine “Sudovy Vesnik” as an example of the violations that must be avoided (the detention in the format of abduction).

Quoting legal distribution,
Prepared by Ales LETA,
Belarusian Legal Portal,

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