MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1331/H46-34

6 December 2018

1331st meeting, 4-6 December 2018 (DH) Human rights   H46-34 Yuriy Nikolayevich Ivanov (Application No. 40450/04), Zhovner group (Application No. 56848/00) and Burmych and Others (Application No. 46852/13) v. Ukraine Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2018)1011, H/Exec(2018)2, CM/ResDH(2008)1, CM/ResDH(2009)159, CM/ResDH(2010)222, CM/ResDH(2011)184, CM/ResDH(2012)234, CM/ResDH(2017)184, CM/Del/Dec(2018)1318/H46-29

 

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/1331/H46-34)	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 entities owned or controlled by the State, 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 stressed 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 in particular 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 that it had dealt with 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. Accordingly, it decided to strike the Ivanov follow-up applications (12,143 cases) out of its list of cases.

It thus 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, i.e. by 12 October 2019.

Status of execution

The major structural problem revealed by the present group of cases has been before the Committee since 2001. In the six interim resolutions adopted between 2008 and 2017, the Committee has focused on the need for the authorities to speed up the process of execution and has repeatedly called upon them to adopt, as a matter of priority, the legal and other measures required.^[2]

At the last examination of this group of cases in June 2018 the Deputies underlined that the ongoing reform of the judicial system in Ukraine cannot be considered to be completed until the issue of the non-enforcement or delayed enforcement of domestic judgments against the State has been resolved.

The Committee stressed that the resolution of the 12,143 individual applications in the Burmych judgment was part and parcel of the general measures required. It strongly encouraged the authorities to define rapidly a common vision of the root causes of the problem, develop the solutions required and implement them within the deadline set by the Court. In response to the last decision of the Committee, the authorities submitted an action plan on 12 October 2018 which is summarised below (for full details see
DH-DD(2018)1011).

The draft law aimed at clarifying the measures required following the Burmych judgment (referred to in previous submissions^[3] to the Committee) was submitted to Parliament on 27 June 2018. The authorities have stressed that this draft law is focused not only on resolving the individual situation of Burmych applicants but is also aimed at finding a long-lasting solution, notably through the Council of Europe project “Supporting Ukraine in execution of judgments of the European Court of Human Rights” funded by the Human Rights Trust Fund.

As a result of the activities organised under this project, the authorities identified in October 2018 three groups of root causes leading to the non-enforcement of the domestic judgments. The following emerged from their submissions:

• Legal reasons and budgetary proceedings: the level of social allowances provided for by various laws does not correspond to the amounts allocated by the budget; there is no link between the State bodies developing and implementing social policy. It is suggested that the role of the Ministry of Finance should be increased in the planning of the State budget and social policy. Moreover, moratoriums (approximately 8) prevent the enforcement of domestic decisions against State-owned companies, even though these decisions represent a major part of the State debt. The authorities consider that an alternative system of guarantees of enforcement should be put in place to overcome these moratoriums.
• Financial reasons: the authorities believe that the main reason for the present size of the problem is the accumulated lack of funds in the State budget. There are currently around 154,984 enforcement proceedings pending before the State treasury for a total amount of UAH 4,221,032,358 (approx. 130,639,614 euro) under the Law “On State Guarantees Concerning Execution of Judicial Decisions” (hereafter – the Guarantees Law). These judgments are enforced in the following order of priority: 1) pensions, social payments, compensation for damage caused by injury or other health damage; 2) labour disputes; 3) other judgments. In 2019, 600,000,000 UAH (approx. 18,625,849 euro) should be allocated under this law, to cover claims in the first priority category. No calculations were presented as to the amount of State debts covered by moratorium or the problems related to replacement of in-kind obligations.
• Institutional reasons related to moratoriums and the possibility of exchanging enforcement of in-kind obligations for monetary awards. Thus the possibility of other compensatory measures should be introduced. In addition there is a major problem with establishing an inventory of unenforced decisions as many different State debtors and budget programmes are involved. The enforcement procedure is not automated due to the absence of appropriate IT instruments. The two registers, the Register of court decisions and the Register of enforcement proceedings, are not interlinked.

The authorities have indicated that a preliminary working document (a draft methodology) has already been elaborated for the work of the national/international experts which would allow them to prepare a more detailed analysis of the root causes.

Moreover, a detailed audit of the decisions pending before the State Treasury was ordered on 9 October 2018 after a meeting of the relevant interlocutors within the State Treasury. Once the results of this assessment are available, a meeting of the Interdepartmental Working Group will take place to elaborate appropriate instructions to the relevant domestic authorities.

On 26 October 2018 the NGO “Ukrainian Helsinki Human Rights Union” submitted its observations to the Committee concerning the general measures in this group of cases (for full details and the authorities’ reply see DH-DD(2018)1095). It noted that the number of unenforced judgments against the State and the debts under these judgments were still not defined. In its view, major structural problems in this group of cases related to legislative blockages for enforcement of judgments (moratoriums), social debts not covered by State funding, and weak enforcement action with only 3-4% of court judgments being enforced, as well as legal obstacles in enforcing obligations in kind. Additionally, one year had passed since adoption of Burmych and Others judgment and the authorities had still not taken practical steps to resolve the problem highlighted in it. There was a risk that draft legislation submitted to the Parliament would not be adopted. Similarly, the likelihood of non-implementation of the required reforms was rather high. It submitted a number of recommendations as to how to address difficulties currently experienced by the authorities in the implementation of this group of cases.

Analysis by the Secretariat

Although the first of two years of the deadline set by the Court (12 October 2019) to implement its judgment in Burmych has passed, the action plan demonstrates that the Ukrainian authorities have not yet made major progress towards reaching a common vision of the roots of the problems at the domestic level in order to allow rapid progress. There is therefore a pressing need for concrete results and for substantial progress in this group. Overall, a political commitment at the highest level is urgently required to give priority to the resolution of this long-standing issue.

In view of the size of the problem and its major impact on the domestic legal system, it has to be recalled that it represents an important danger for the rule of law in Ukraine. The judicial reform cannot therefore be complete until this issue, which goes to the heart of access to justice, is fully resolved.

The authorities’ cooperation with the Council of Europe is a positive step and should be encouraged. The preliminary document suggesting a draft methodology for the establishment of the root causes, developed with the expert assistance of the Human Rights Trust Fund project, is a good starting point. The authorities’ recent efforts to present a preliminary analysis of these root causes should be noted with satisfaction. It is imperative, nevertheless, that these efforts result in a thorough expert analysis of the root causes – which the Committee has previously considered to be indispensable – with the necessary statistical, factual and other inputs required of all relevant domestic interlocutors.

This analysis should also identify potential solutions. It is however evident that, on their own, a methodology and a thorough expert analysis of the root causes are insufficient; adequate and comprehensive solutions should be devised and implemented to resolve the problems identified.

The development of the draft law aimed at clarifying the measures required following the Burmych judgment, and its submission Parliament, should be noted with satisfaction. However, it should be rapidly adopted as more progress is needed. There has yet to be substantial progress in setting up or improving domestic payment and budgetary procedures, or the legislative framework in general, and more particularly as regards the moratoriums and the problems related to in-kind obligations. Rapid action by the authorities is needed to prevent further deterioration of the situation, bearing in mind the fast-approaching deadline.

As regards the relevance of amendments to the Guarantees Law, initially adopted in 2012 seeking to introduce an effective remedy,^[4] it should be noted that this remedy cannot in itself offer a global solution for execution of domestic court judgments by the State. Such execution should be automatic, and the necessary mechanisms and funding should be ensured. This kind of remedy could only serve as an additional safeguard. It therefore does not make any major contribution to a long-lasting solution. The proposals for a remedy should be reassessed as part of the thorough expert analysis of root causes to be undertaken by the authorities.

The proposal to set aside 600,000,000 UAH in the State budget to cover priority claims arising out of unenforced judgments under the Guarantees Law is noted with interest. However, it should be urgently supplemented by further allocations to cover the other accumulated debts already quantified so that these can be paid. Furthermore, the audit of the part of the decisions pending execution, i.e. those pending before the Treasury, should be completed rapidly. It is already obvious, however, that the budgetary funds allocated for these purposes are not sufficient to cover the claims of applicants placed on the waiting list. Further measures should be taken by the authorities to identify the overall scale of the problem, and the expert analysis of the root causes should present the necessary tools for this.

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 March 2019.

Additionally, given that the issue has been pending before the Committee since 2004, the Secretariat has prepared a detailed overview of the Committee’s supervision of the individual and general measures taken so far (see H/Exec/(2018)2).

Financing assured: YES