Russian and World NewsSuit on European standards
Russia gradually joins in the all-European legal field. To no small degree it is promoted by activity of the European court under human rights. How to achieve that your voice has been heard in Strasbourg, the leader of a heading Maxim Chernigovsky tells visited on hearings of the European court.
As the European court
In May, 1998 Russia at last is arranged ratified the European convention under human rights. Unlike the majority international, and internal legal certificates the European convention not simply declares the universal rights, but also provides the special mechanism of their protection. The section of II convention provides establishment of special court which considers disputes between citizens and the governments of the countries which could not provide realisation of their rights.
the European court consists of the judges which number corresponds to quantity of the states-participants of the convention (now 43 judges). Judges are selected Parliamentary assembly of the Council of Europe for six-year term. The nominee of the judge is brought by convention member state. Each three years half of judges is updated at the expense of elections. Is in the European court and the judge from Russia. He is Anatoly Kovler, the professor of a constitutional law. Term of its powers expires on October, 31st, 2004.
judges participate in court work in personal quality and do not represent any state. They have not the right to carry out any activity incompatible with their independence, impartiality or constant character of their powers. In 70 years irrespective of date of the introduction into a post of the judge retire.
the Court is divided into four sections which structure according to court regulations should be balanced to geographical and sexual signs and reflect various legal systems of the states-participants of the convention. Two sections are headed by vice-presidents of the court, two - chairmen of sections. Who will be the chairman, zamami or chairmen of sections, judges at plenary sessions solve.
sections, in turn, form committees as a part of three judges. Committees carry out filter function, recognising as comprehensible or unacceptable the majority of the statements which have arrived in court.
except committee, in section the chamber is formed of seven judges who are appointed as sequence. Without dependence from sequence the chairman of section always participates in chamber session. Other obligatory participant of work of court is the judge selected from the state, being the party in business. He is obliged to participate in a legal investigation even if formally consists in other section. The members of section who are not members of chamber, participate in session on business in quality of spare judges.
except usual chamber, exists also the Big chamber presented by 17 judges. Besides the judges who are members of the Big chamber owing to a post (the chairman of the court, the vice-president of court and chairmen of sections), judges enter into it as sequence from two groups replacing each other each nine months. The structure of these groups too is geographically balanced and reflects various legal systems of the states-participants of the convention.
how to set business in motion
Any state-participant of the convention or the person who considers that any of the states-participants has broken its rights guaranteed by the convention, can address in the European court, having filled the special data card. The data card and the explanatory note how it to fill, eat on a court site http:// echr. coe. int. Those who has no access to the Internet, can address directly in court secretary.
basically individual applicants can present the statements independently, however the court always recommends to use the lawyer. If the individual statement (complaint) recognise as comprehensible, the lawyer will be obligatory. If necessary the Council of Europe can give a free legal aid to persons whom means do not allow to employ the lawyer. The statement can be made and in Russian. However after the statement is recognised by comprehensible, one of court official languages - English or French should be used.
each individual statement arrives in the section which chairman appoints the judge - the lecturer. After preliminary check of the complaint the lecturer solves, whether it will understand committee from three judges or chamber.
the Committee can the unanimous decision declare the complaint unacceptable and exclude it from the list of the affairs which are subject to consideration in court if it is possible without the further trial. When complaints usually admit unacceptable? As a rule, it becomes in case term of giving of the complaint - since the moment when the applicant has settled possibilities of protection of the broken right to territories of own state is broken six months. For example, if he has addressed in court semi-annual term starts to be counted from the moment of the introduction of a judgement into validity (we will tell, after acceptance of the definitive judicial certificate by cassation instance). And supervising manufacture considers the European court as extraordinary procedure of protection, to wait its terminations does not follow. If you have not lost hope that the supervising instance in all will understand, put in the statement both in supervision, and in the European court.
Other often meeting error is, on the contrary, incompleteness of legal proceedings in the country. So, the applicant can fill up with the references all instances: Office of Public Prosecutor, militia, Presidential Administration, - but will not guess simply to go to court. Or has put all - taki has got to court, but it is considered very long, and the applicant, having lost patience, writes the complaint to the European court.
anonymous complaints Admit unacceptable. Besides, in the same occasion it is impossible to complain twice. Unacceptable the complaints in essence similar to those which or has already been considered by the European court and if she does not contain the new relevant facts Also admit, or already is a subject of other procedure of the international trial or settlement. The court also declares unacceptable any individual complaint if will consider giving of complaints its obviously unreasonable or abusing the right.
It is necessary to notice that admit unacceptable an overwhelming part of complaints - all about 95 %. At Russians this indicator is slightly better: 7 % of complaints admit comprehensible, and 93 % are eliminated only. Now more than 20 complaints of Russians are recognised comprehensible hardly.
the chamber considers individual statements which are not recognised by unacceptable committees or are left by the lecturer of directly chamber. In particular, at this stage there is Vladimir Gusinsky`s complaint. The committee has not come to unanimous opinion that its complaint is unacceptable though also as comprehensible it did not recognise. Now this question will be considered by chamber. It accepts both the decision on an acceptability, and the decision in essence - sometimes in one document.
If the business which is on consideration of chamber, brings up the serious question, concerning interpretation of positions of the convention or if the question decision can enter into the contradiction with earlier taken out court the decision, the chamber can leave the statement in the Big chamber (if any of the parties does not object to it).
the First stage of trial is usually spent in writing though the chamber can make the decision on hearing carrying out on business. So the court when solved a question on an acceptability of the complaint of certain Abdul - Vahaba Shamaeva and others 12 Chechens detained by the Georgian frontier guards in August of last year on Russian - the Georgian border has arrived. Their business was considered on September, 16th this year.
a definitive verdict
If your complaint is recognised by comprehensible, consider that half you have won process. At intermediary of secretary of court there can be begun negotiations about friendly settlement of dispute. More often it is much more favourable to state to agree with the applicant, than to bring matters to a definitive verdict. After all the recognition the European court of the fact that it has violated human rights, the serious damage causes to national prestige. One year ago Ukraine has endured such humiliation when the court recognised that intervention in litigation in territory of this country of Ukrainian president Leonid Kuchma has broken the right of the Russian company “ Sovtransavto “ on fair and impartial court.
in parallel with negotiations about friendly settlement there is a preparation for complaint consideration in essence. The court can offer the parties participating in business, to produce the additional evidence or written explanations, including offers of the applicant under fair indemnification. The parties can be invited to public hearings on the substance of the statement.
the decision is accepted by majority of votes of members of chamber. Each judge who was taking part in consideration of the statement, has the right to put the separate opinion to the decision or to specify in separate opinion presence. Within three months after removal by decision chamber any of the parties in business can put in the statement for business transfer on revision in the Big chamber. Similar statements are considered by board as a part of five members of the Big chamber into which number enter the chairman of the court, chairmen of sections (except for the chairman of that section to which the chamber which has accepted the challenged decision), and also the judge selected as sequence from among judges, not entering into the chamber which has accepted the challenged decision belongs.
decisions of chambers become definitive after the three-monthly period or earlier if the parties declare that do not intend to transfer the statement for revision in the Big chamber or if the board makes the decision on refusal in revision of decisions by the Big chamber. If the board satisfies the statement for revision, the Big chamber accepts decisions on the substance of the statement by a majority of votes. Its decisions are not subject to the appeal.
execution by the state - the respondent of the taken out decision is watched by committee of ministers of the Council of Europe. The committee of ministers defines, whether the state, recognised guilty of infringement of positions of the convention, adequate measures on execution of the obligations following from decisions of court have been taken. Certainly, the Council of Europe will not send to the country which has not executed the decision of the European court, the court enforcement officers and not begins to arrest its actives. However the country, refused to execute the decision, risks to appear in the international isolation. And who will invest money in the country which is not carrying out own obligations?
edition invites experts in the field of the right to share the knowledge with readers “ Money “. E - a mail: lawyer@kommersant. ru.