MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1318/H46-29

7 June 2018

1318th meeting, 5-7 June 2018 (DH) Human rights   H46-29 Yuriy Nikolayevich Ivanov and Zhovner group v. Ukraine (Applications No. 40450/04, 56848/00) Supervision of the execution of the European Court’s judgments Reference documents CM/ResDH(2008)1, CM/ResDH(2009)159, CM/ResDH(2010)222, CM/ResDH(2011)184, CM/ResDH(2012)234, CM/ResDH(2017)184, DH-DD(2018)418, CM/Del/Dec(2017)1302/H46-38

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
40450/04	YURIY NIKOLAYEVICH IVANOV	15/10/2009	15/01/2010	Pilot judgment
56848/00	ZHOVNER GROUP (List of cases CM/Notes/1318/H46-29-app)	29/06/2004	29/09/2004	Complex problem
46852/13+	BURMYCH AND OTHERS	12/10/2017	Grand Chamber (Striking out)	Complex problem

Case description

These cases relate to the important structural problem of non-enforcement or delayed enforcement of domestic judicial decisions, mostly delivered against the State and State-owned or controlled entities, and to the lack of an effective remedy in this respect (violations of Articles 6 § 1, 13 and Article 1 of Protocol No. 1).

In October 2010, the Court delivered a pilot judgment in the Yuriy Nikolayevich Ivanov case. It indicated that specific reforms in Ukraine's legislation and administrative practice should be implemented without delay to resolve this problem and set a deadline of 15 July 2011 for the creation of an effective domestic remedy in this respect. The Court further invited the respondent State to settle on an ad hoc basis all similar applications lodged with it before the delivery of the pilot judgment (1,600) and decided to adjourn the examination of similar cases. Given that the measures called for by the Court in its pilot judgment were not adopted within the deadline set, in February 2012 the Court decided to resume the examination of the frozen applications raising similar issues.

On 12 October 2017, the Grand Chamber delivered its judgment in the Burmych case. It noted that, despite the significant lapse of time since the Ivanov pilot judgment, the Ukrainian Government had so far failed to implement the requisite general measures capable of addressing the root causes of the systemic problem identified by the Court and to provide an effective remedy securing redress to all victims at national level.

Bearing in mind its efforts in examining Ivanov-type cases for over 17 years[1], the Court concluded that nothing was to be gained, nor would justice be best served, by the repetition of its findings in a lengthy series of comparable cases, which would place a significant burden on its own resources, with a consequent impact on its considerable caseload.

It thus decided to strike the Ivanov follow-up applications (12,143 cases) out of its list of cases and found that the grievances raised in these applications had to be resolved in the context of the general measures to be introduced by the authorities at national level, as required by the execution of the Ivanov pilot judgment, including the provision of appropriate and sufficient redress for the Convention violations, measures which are subject to the supervision of the Committee of Ministers. The Court envisaged that it might be appropriate to reassess the situation within two years of the delivery of the Burmych judgment.

Status of execution

The issue has been pending before the Committee since 2004. In its six interim resolutions adopted in this group of cases between 2008 and 2017, the Committee has focused on the need for the authorities to speed up the process of execution and has thus repeatedly called upon them to adopt, as a matter of priority, the measures needed in the domestic legal system.^[2]

Individual measures:

No new information on individual measures has been submitted since the last examination at the 1302^nd meeting (December 2017) (DH).

General measures:

In response to the last decision of the Committee, in which the Deputies highlighted the urgency of the creation of an ad hoc redress mechanism for all applicants concerned by the Burmych and Others judgment, which should go hand in hand with the efforts to secure a long-lasting solution addressing the root cause of the problems, the authorities submitted an action plan on 17 April 2018[3] which is summarised below (for full details see DH-DD(2018)418).

On 27 March 2018 a high level Round Table at the Verkhovna Rada was held with the participation of the Minister of Justice, Chair of the Verkhovna Rada’s subcommittee on the execution of judgments of the European Court of Human Rights, the Ombudsman, the judiciary, civil society and other authorities as well as Council of Europe experts and officials, including the Director General of Human Rights and Rule of Law. The Round Table was dedicated to the discussion of the long-standing structural problem of, and possible solutions to, non-enforcement or delayed enforcement of domestic judicial decisions.

Following that round table, the authorities continued their work and prepared draft laws which were due to be discussed at the meeting of the Intergovernmental Working Group on 19 April 2018 on this issue. They indicate that they will submit a full copy of the draft laws to the Committee in due course but mention a number of elements under consideration including:

 

As regards the ad hoc situation of the Burmych applicants:

-               amendments to the 2006 Law on “Execution of the judgments of the European Court of human rights”, to clarify that the Burmych judgment falls within its scope;

-               a procedure for disseminating information to the applicants as regards the ad hoc solution, including publication of an announcement on the official website of the Ministry of Justice and in the official journal;

-               a procedure for the verification of the applicants’ claims by bailiffs and the establishment of a register for the applicants, as well as a procedure and a time-limit for debt payment by the Central Executive Authorities;

-               a procedure for the determination of the outstanding debt and the amount of compensation for non-pecuniary damage with respect to each applicant (10% of the outstanding debt, but not more than the amount of the minimum salary[4]);

-               a six month time-limit for filing claims under this mechanism;

-               adjustment of the State budget accordingly to allow for the payment of claims.[5]

As regards the long-lasting solution:

-               the Cabinet of Ministers and the Ministry of Justice intend to draw up an action plan which would address the root cause of the problems and amend the Law on the State budget to allocate sufficient funding;

-               amendments to the Law “On the State Guarantees regarding the Enforcement of Judicial Decisions”: a person with an unenforced decision against the State will be able to receive compensation more rapidly (within three months) under a Budget programme to this end; 

-               a procedure to secure enforcement of the unenforced judgments concerning obligations in kind;

-               the establishment of the “Supervisory Commission on the Enforcement of Judicial Decisions against the State“ under the Ministry of Justice, which would, inter alia, examine complaints regarding refusals to enforce judicial decisions against the State.

Analysis by the Secretariat

It is recalled that, as highlighted by the Committee in June 2017, the dysfunction of the justice system, as a consequence of the non-enforcement or delayed enforcement of domestic judgments, represents an important danger for the respect of the rule of law, undermines people’s confidence in the judicial system and calls the credibility of the State into question.

There can be no truly effective and meaningful access to court in the absence of certainty for individuals that once proceedings have terminated and a final judgment is given, that judgment will be enforced. The reform of the judicial system in Ukraine cannot therefore be considered to be complete until this issue, which goes to the heart of access to justice, is fully resolved.

The holding of a high level Round Table in the Ukrainian Parliament in March 2018, with the involvement of major domestic interlocutors, dedicated to finding solutions to this systemic issue was thus a welcome initiative as is the ongoing work to establish the ad hoc mechanism. Nevertheless, whilst the involvement of the Ukrainian Parliament, and the apparent growing understanding of the need to take urgent steps, is important and raised awareness of this structural problem, the subsequent action plan submitted by the authorities still does not demonstrate a common vision at the domestic level of the root causes of the problems at hand or the potential solutions.

The action plan also demonstrates that, almost eight months after the Grand Chamber issued its judgment in Burmych, the Ukrainian authorities are still at the reflection stage and no concrete progress has been made. This is all the more worrying given that the deadline of two years set by the Court (12 October 2019), for when it may reassess the situation and decide whether to exercise its power to restore the cases, is fast approaching.

As regards the creation of an ad hoc redress mechanism

Whilst the authorities have started to discuss possible draft laws and amendments to other pieces of legislation to govern the modalities of payment and the availability of funds to enforce some existing domestic judgments and pay compensation to some victims included in the Burmych judgment, the measures presented are only under discussion for the time being and have not yet been implemented.

Furthermore the authorities’ insistence on the need to change the 2006 Law on “Execution of the judgments of the European Court of human rights” so that Burmych can be executed appears to be misguided. As underlined repeatedly in bilateral discussions, the Grand Chamber was crystal clear in Burmych that all of the individual applications examined, as well as any similar future cases to be submitted to it, are part and parcel of the process of execution and general measures required by the Ivanov pilot judgment (see § 198). These general measures are merely reiterated again in the Burmych judgment. They are not new or distinct from the obligations under Article 46 of the Convention already ensuing from the Ivanov pilot judgment.

It would be a matter of serious regret if the authorities gave priority to changing this law, investing considerable time and effort in its adoption rather than, as the Grand Chamber indicated, focusing on the necessary general measures addressing the root cause of the problems and ensuring that the mechanism of redress for the systemic problem found in the Ivanov judgment extends to all victims with non-enforced judgments, including but not limited to those who happened to have lodged applications with the Court (see § 215).

As regards the long-lasting solution

The authorities have focused their reflections thus far on solving the issue of the outstanding “historic” non-enforced judgments which were struck out by the European Court in the Burmych judgment.

This is an inevitable part of the response to the general measures required which can be noted with interest. Nevertheless, it is imperative that it operate in parallel with efforts to secure a long-lasting solution to this problem, which is continuing to generate numerous applications to the Court.

The key purpose of the long-lasting solution is to ensure that in the future domestic judgments rendered against the State, or State-owned or controlled entities, are enforced automatically without any undue delays, excessive formalities or obstacles. It is a matter of serious concern that the authorities have not submitted any information on this aspect, which is key to the successful execution of these judgments, apart from an indication that the Cabinet of Ministers and Ministry of Justice will elaborate an action plan to that end.

A detailed analysis of the root causes of the problems on the basis of available, up to date factual information should be an indispensable part of identifying the long-lasting solution. This expert analysis should incorporate a legal assessment of the substantive and procedural problems already identified in the Court’s judgments and in the execution process before the Committee. It should also include, inter alia, statistical data relating to judgments delivered against the State (i.e. number and types of unenforced judgments, the types of cases awaiting enforcement, the types of obligations - monetary or in kind - arising from these judgments, enforcement and recovery rates). Furthermore, it should address the issue of simplification of the process of execution of judgments delivered against the State in the future, having regard to the case-law of the Court.

Next steps

A new Council of Europe project “Supporting Ukraine in execution of judgments of the European Court of Human Rights” funded by the Human Rights Trust Fund has been launched, and is aimed notably at assisting the authorities to resolve this specific long-standing issue. The first meetings took place in March 2018. The authorities (including all relevant domestic interlocutors) should be encouraged to take full benefit of this project which has the potential to contribute to the development of a common vision of the underlying causes and how these should be addressed, something that is currently lacking.

In order to follow closely the progress made, and in light of the October 2019 deadline set by the Court, the Committee may wish to re-examine this group of cases in December 2018.

Financing assured: YES