Strasbourg, 9 December 2005 CEPEJ (2005) 8
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
EXAMINATION OF PROBLEMS RELATED TO THE EXECUTION OF DECISIONS BY NATIONAL CIVIL COURTS AGAINST
THE STATE AND ITS ENTITIES IN THE RUSSIAN FEDERATION
1. Within the framework of Article 2.1.d of the Statute of the European Commission for the Efficiency of Justice (CEPEJ), the State Legal Directorate of the President of the Russian Federation requested the assistance of the CEPEJ to i) analyse the situation of the non execution of court decisions rendered against the State and/or its bodies in the Russian Federation, in the light of the experience of other member states and ii) to formulate recommendations in order to improve this situation.
2. This request has been launched taking into account in particular the numerous cases to the European Court of Human Rights concerning this specific issue in the Russian Federation – almost 40 % of the cases concerning the Russian Federation and declared admissible by the European Court of Human Rights address the issue of non execution of court decisions by the State or its bodies.
3. This specific assistance was approved by the CEPEJ Bureau on 18 January 2005.
The following expert team was designated for that purpose:
- Ms Mireille HEERS, Deputy President of the Administrative Court of Appeal of Versailles, France,
- Mr Hans-Peter SCHMIESZEK, Head of the Office of Administrative Procedural Law at the Federal Ministry of Justice, Germany,
- Mr Theo SIMONS, Senior Vice-President of the Administrative Court of Appeal, the Netherlands,
- Mr Michael VRONTAKIS, the CEPEJ member in respect of Greece, Vice-President of the State Council, Greece.
The CEPEJ was informed of this cooperation at its 5th plenary meeting (15 – 17 June 2005).
4. An exploratory mission to Moscow took place on 27 - 29 June 2005. The programme of this mission appears in Appendix I.
On the basis of this fact-finding mission, the experts prepared a preliminary report discussed with the Russian delegation in Strasbourg on 20 - 21 October 2005. The list of participants appears in Appendix II.
The report prepared by the experts was adopted by the CEPEJ at its 6th plenary meeting (7 – 9 December 2005).
5. The execution of judicial decisions is part of the fair trial as provided for by Article 6 of the European Convention of Human Rights and the subsequent case law of the European Court of Human Rights (ECHR). If final decisions against the state and its entities are not enforced or are not enforced in a reasonable time, this will lead to a violation of the Convention.
This will occur regardless of whether the judgment is directed against the Federation or against its subjects .
6. While addressing the execution of court decisions by the state authorities, the experts draw the attention to Recommendation Rec(2003)16 of the Committee of Ministers of the Council of Europe on the execution of administrative and judicial decisions in the field of administrative law. They recommend that the provisions of this Recommendation be used as guidelines for possible reforms aimed at improving the procedures and mechanisms for executing courts decisions against the State or its entities.
7. It appears from the outset that the problem of non-execution of judicial decisions in the Russian Federation, which is an immense and multi-dimensional problem, affects the effectiveness and efficiency of the judiciary at all levels. The non-payment of sums ordered by domestic decisions is one of its major issues. The authorities have acknowledged that the problem is not due to the lack of funds.
8. The core issue seems to be the lack of appropriate procedures allowing both timely and coordinated distribution of these funds and the execution of judicial decisions ordering the state to pay the sums due.The issues that have been set out before the experts are related, directly or indirectly, to court decisions, which:
(a) are pronounced on actions, brought either by individuals or by companies, complaining of non satisfaction of pecuniary claims;
(b) are enforceable on the budget of the State and/or its entities in the Russian Federation.
9. Therefore this report will concentrate exclusively on those decisions involving financial issues.
10. Nevertheless, the experts stress that other cases regarding relationships between the administration and individuals deserve similar attention when addressing the execution of court decisions against the state or its entities. Thus court decisions of annulment of administrative acts or affirmative obligations should be carefully taken into account while dealing with the obligation by the state to execute court decisions in conformity with Article 6 of the European Convention of Human Rights.
I. SITUATION OF THE EXECUTION OF COURT DECISIONS RENDERED AGAINST THE STATE OR ITS ENTITIES
11. It appears that at least 50% of the court decisions condemning the State to the payment of sums to the applicants are not executed or not executed in a reasonable time in the Russian Federation. Although the situation seems to be generally improving, it still suffers the accumulation of cases.
12. The main problems connected to the present issue can be qualified into three groups, as follows:
1. Legislative issues:
(a) Some laws adopted in the social field in the 90’s apparently did not take into consideration the effective financial possibilities in the budget. The result of this has been a lack of the necessary funds to pay the amounts due to various creditors and the multiplication of non executed cases; delays have not yet been filled.
(b) The law does not always clearly point out the mechanism (entities, source and procedure) for payments, especially in case of social benefits.
(c) Despite the adoption of laws and policies involving public expenditures, no corresponding provisions seem to be always anticipated in the budget.
(d) Legislation is changing frequently and the financial legislation is becoming more and more complex.
2. Judicial issues:
(e) Contradictory court decisions can be delivered on the same issue. Indeed, the concurrent jurisdiction in the Russian judiciary system might leave room for parallel recourses, on the one hand to the arbitration court system and, on the other hand, to the civil court system, whose outcomes might diverge. The result is that the public authority condemned to pay according to one judiciary system might be incited to wait for a possibly more favourable decision to be given by the other court system before executing the decision.
(f) Supervision procedures of legality of final judicial decisions (Nadzor) might create under certain circumstances uncertainties with regard to the nature of a final decision and therefore incite the public authorities to wait for a possible extraordinary recourse with a possibly more favourable result, before executing the judicial decision, in particular in order to avoid risk of restitution.
(g) In case of non execution of a court decision, the applicant might address several times the court in order to get a decision on indexation of the amounts (some lawyers may become "specialised" in such procedures). In addition, some delays might engender new appeals founded on moral damages due to the non execution. This feeds a vicious circle of non executed decisions.
(h) The lack of training or qualification of some judges might make it difficult for a decision to be properly enforced (in particular because of lacuna within the motivation of judicial decision).
For this reason, courts might not apply the law in force, declare it to be null and void, or interpret it in a manner different than that intended by lawmakers, which might incite public authorities to disregard the judicial decision.
(i) The law system is based on voluntary execution of judgements by the Federation (federal properties cannot be seized), not allowing compulsory execution against the Federation.
(j) Lacuna can be noticed in the procedure governing the activities of the Federal Bailiff Office and in the means allocated for it.
3. Budgetary and administrative issues:
(k) The body in charge of the payment of allowances at the Ministry of Finance lacks financial and human resources to remedy the excessive delays in execution of court decisions.
(l) According to the existing procedures, sums to be paid by the state in compliance with judicial decisions must be foreseen in the next year’s budget; there is no possibility to pay under the current budget (no reserves in the budget), which creates automatic delays in the execution.
(m) Recent reforms have been introduced concerning the relations between the Federation, its Subjects and the municipal levels. Some competencies are shared or have recently changed from one level to another. It is therefore not always clear which body or which level has to execute the court decision today.
(n) Without proper supervision, funds delegated from the federal to lower levels for the payment of due amounts to citizens, including for the execution of court decisions, might be allocated by the lower levels for other purposes.
(o) Sometimes individual decisions are made at the administrative level which are legally binding towards third persons without taking into account the existence of budgetary provisions about them.
(p) Public authorities experience difficulties with claims for execution that are presented to them very late.
13. The serious lacuna in the execution of court decisions against the State or its entities, which are clearly acknowledged by the Russian authorities, are the result of the addition of a large range of dysfunctions, which occur at various levels, often beyond the judicial or legal sphere.
14. Considering the complexity of the present issue, the experts would like to comment on the situation at three levels: general considerations, recommendations regarding the environment of the execution and specific recommendations regarding the execution.
1. General Considerations
15. According to its Statute, specific assistance given by the CEPEJ to the Council of Europe's member states is conceived as technical assistance focused on legal and judicial measures. Although the CEPEJ has no pretension to overpass this function and does not feel qualified to comment on reforms which would go beyond this technical scope, it feels obliged to underline the following more general points before focusing its concern on legal and judicial issues.
16. The experts are of the opinion that, in order to reach durable solutions for the issue of the execution of court decisions by public authorities, the reforms may not be limited to the judicial procedure levels or to the organisation of the execution services.
a) Relations between the Federal State, its Subjects and lower levels
17. Comprehensive reforms might take into consideration the relations between the Federation, its Subjects and the municipalities.
18. Whether or not the Federation may pursue recourse from individual states in cases when the Federation is ordered to pay compensation for damages is an issue of domestic law which governs the legal relationship between the Federation and its Subjects.
19. In this context, one option might be to offset claims of the Subjects against the Federation.
20. The authorities have acknowledged that the non-execution is largely due to complicated budgetary relations between the federal authorities and the authorities of the constituent entities of the Russian Federation. The procedure for allocation and distribution of funds should therefore be reviewed.
b) Budgetary issues and public finances
21. Reforms should also consider comprehensive reforms in the functioning of public financial structures.
22. According to the existing procedure, sums to be paid by public authorities in compliance with judicial decisions should be previously foreseen in the next year’s budget. Hence, the systematic delays in payment of these sums.
23. The on-going legislative process towards the adoption of amendments to the Budgetary Code to improve this situation is therefore supported by the experts.
24. It should be ensured that the administrative authority has appropriate provision to avoid a situation whereby a lack of funds would prevent it meeting its obligation to pay a sum of money, as set out in particular in Recommendation Rec(2003)16.
25. Payments as a result of final judgments, or those declared enforceable, are compulsory and should be made. To the extent that no money, or insufficient money is available in the budget, these are to be considered mandatory expenses that should be remitted despite the current budget constraints. As a general rule, such expenditure must be balanced out in a reasonable time, i.e. by switching the necessary funds from one budgetary line to another. To the extent that this is not possible, the funds must be acquired, if necessary though loans.
26. A commissioner (responsible person independent in his/her function) for the budget is to be appointed by each Ministry, who monitors the budgetary expenditure in the Ministry and in that function, is also responsible to the Ministry of Finance in disciplinary terms. Similar arrangements are to be made in the subordinate agencies.
27. The appointment of federal commissioners could be considered, who, in case of inactivity of the entities, are entitled to pay their debts in accordance to the provisions of their budgets.
28. With the condition that the Federation has no financial worries and is making payments to the Subjects of the Federation, it might also be advisable to set up a specific fund at the level of the Federation.
This fund could pay the debts of the Federation or its entities in case they are finally sentenced to pay to citizens in order to cope with shortcomings in the budget.
Consequently, the devolution of the claim to the fund would be observed and the fund would have a legitimate claim against the Federation or against its bodies.
2. Recommendations regarding the environment of the execution of court decisions by public authorities
a) Limiting the problem of non execution by preventing judicial disputes: promoting alternative dispute resolutions
29. Recalling Recommendation Rec(2001)9 of the Committee of Ministers of the Council of Europe to member states on alternatives to litigation between administrative authorities and private parties, the experts draw the attention to the prevention of judicial disputes and alternative dispute resolutions.
30. Indeed, in order to decrease the number of non executed judicial decisions, policies aiming at preventing judicial disputes could be developed, in particular through the promotion of alternative means of solving disputes between public authorities and private parties. Specific procedures for internal reviews, conciliation, mediation, as well as negotiated settlement could be strengthened.
31. Alternative means to litigation should be either generally promoted or promoted in certain types of cases deemed appropriate, such as those concerning claims relating to financial amounts.
b) Limiting the reasons given to the state authorities for delaying or non-executing judicial decisions
32. In order to limit the reasons given to public authorities to take unnecessary time before executing a court decision, specific reforms could be focused on the avoidance of parallel court decisions on a same case.
33. Such reform could for instance take into consideration the following principles: if a proceeding is made pending, the same case may not be made pending in another court. Where a case has been decided, no new decision should be made regarding the matter. The legal dispute could be decided by the court taking into account all relevant legal perspectives, so that the court of a given branch of law may decide on legal principles that – taken separately – belong to the jurisdiction of another court. In the case of lack of jurisdiction, the court transfers the legal dispute to the court with jurisdiction. The transfer is binding upon the court to which the case has been transferred. This also applies when the court to which the legal dispute has been transferred does not in fact have jurisdiction.
34. Especially as regards claims of companies and shareholders having a common legal and factual ground, the proper solution could be to extend the force of res judicata of judgements issued on claims brought by the company to its shareholders as it concerns the aforementioned claims of the shareholders. Therefore the shareholders should be summoned in the appropriate procedural manner to intervene before the arbitration court when it considers a legal action brought by the company so as to be put in a position to assert those claims of them. In case of no such summoning, the shareholders should be provided with the right to bring an opposition to third party against the decision which rejects the legal action brought by the company and is endowed, on behalf of the shareholders, with the force of res judicata.
35. The reform could also aim at avoiding contradictory court rulings, considering in particular the following principles: differing decisions within a given branch of jurisdiction could be made uniform by decisions of the higher-level courts within that branch (particularly within the scope of appeals on points of law). Differing decisions within a court may be avoided by submitting the legal issues to a “Grand Panel”, which is to make the decision. "Grand panels" are to be recommended on the level of the highest-level federal courts. Differing decisions among various branches of jurisdiction may be avoided by establishing a joint "Grand Panel" of the highest-level courts, which would be empowered to make decisions – as leading decisions for all branches of jurisdiction – on these legal issues.
36. For reasons of clarity, a Uniform Code of Procedure could be developed, which applies to all types of proceedings. The Code of Procedure could be divided into a general section, which applies equally to all types of proceedings, and into specialised sections which contain special provisions for specific types of proceedings.
37. To develop a more favourable environment for the execution of court decisions by public authorities, measures could also be taken to avoid repeated decisions when a decision cannot be enforced, based on the following principles: claims upon which a final decision has been made may not be decided anew. This result is acceptable only when existing execution orders remain effective although execution has been unsuccessful. To the extent that an order exists which may be enforced, no further judicial proceeding is necessary. There is no need to seek judicial relief in a renewed proceeding. The action is inadmissible. In addition to procedural rules, it must be ensured that the claim is not barred by the statute of limitations.
38. Default interest for non-payment of sums ordered by judicial decisions could be imposed on the state.. The lack of appropriate indexation of the amounts and of default interest imposed on the state is most often the reason for people to go back again before the court, thus multiplying the judicial decisions and creating a vicious circle referred to in § 12.2(f). The problem is that Article 395 of the Civil Code providing for default interest seems virtually inapplicable by courts to the state’s debts and almost exclusively applied in commercial relations between individuals. Yet nothing in the law prevents the applicability of this provision to state debts as well. It would therefore appear that the imposition of default interest for non-execution of judicial decisions also against the state could be ensured by the Plenum of the Supreme Court through a more generous interpretation of Article 395.
39. To face decisions which declare norms null and void or which interpret norms in a manner different than that intended by lawmakers, it should be made clear that the judge applies the law in force and does not make law. If this principle is not followed in practice, it is the primary responsibility of the state to ensure by way of training of jurists and further training for judges that they are in fact in a position to correctly apply the law in force.
Inconsistency in judicial decisions may be avoided or at least lessened by providing that the law in force may not simply be declared null and void in specific cases, but rather that the case is to be submitted to a high-level court. In cases where a court is of the opinion that a norm violates higher-ranking law, it may be provided that the court may not simply declare the norm to be null and void, but rather must submit the case to a higher court for review. This may be particularly recommended in cases involving alleged violations of the Constitution (submission to the Constitutional Court is advisable here).
40.Difficulties in obtaining recourse in cases where execution is effected from non-final judgments that are later vacated may be overcome by having execution of non-final decisions declared invalid in certain cases, and/or by providing that execution in the case of non-final decisions is possible only upon provision of security. The principles are that the execution can apply only to final judgements (which cannot be challenged by a higher court) and that non final judgements can only be executed in cases provided for by the law and upon provision of financial security.
3. Specific recommendations regarding the execution of court decisions by public authorities
a) Procedure allowing efficient compulsory execution against public authorities and the seizure of the property of public authorities
41. The Russian system is largely based on voluntary execution of judgments by the Federal state (compulsory execution is not possible against the Federal state). However, the experience of other countries (e.g. Belgium, Greece) convincingly shows that the compulsory execution and seizure of the state property was instrumental in compelling the states to honour their financial obligations.
42. This avenue should be further examined in the Russian Federation, as well as, more generally, the ways in which the liability of public authorities for non-execution could be engaged.
b) Procedural recommendations to improve enforceability of court decisions against the state and its entities
43. There is an ongoing discussion in the Russian judicial community about the possibility of strengthening the courts’ role in execution of their own decisions.
44.The ways and modalities of the courts’ involvement and, in particular, the possibility of judicial sanctions to ensure effective execution of judgments, have to be thoroughly considered in consultation with the judicial community.
45. In terms of procedure, it is necessary to adopt regulations which afford the courts the authority to effect execution against the state and its entities. This applies equally to execution against the Federation and to execution against the Subjects of the Federation.
46.As a general rule, the same should apply to measures of execution against the state and its entities as to measures of execution against private individuals, and this means: the enforceable judgment provides the creditor with the claim to have the state enforce the judgment on his behalf. This applies equally if the judgment is directed against the state or its entities. The debtor – including the state – is liable to the creditor with all of his/its assets. However, there should be an exception for assets which the state requires in order to fulfil its public duties.
47. For reasons of practicability, it should be provided in the rules of procedure that, in proceedings against the state or its entities, the defendant is the legal entity whose public authority has made the decision. This avoids claims being asserted more than once (against various public authorities). Thus, where that claims are directed against the Federation, it should be provided that the action is to be brought against the Federation. Which department then represents the Federation in the legal proceeding is a matter of state organisation. More details on this appear below.
ii) Specific measures of execution
§ Attachment of goods
48.Bailiffs (or court officers) take possession of the goods and hold a public auction. The proceeds are distributed to the creditor. A specific reasonable period of grace (six weeks) could be provided for by the law to the state and/or its entities in order to fulfil the claims. Goods absolutely needed to fulfil public duties are exempted from attachment.
49.A garnishment against the state must be provided for by the law. A specific reasonable period of grace (six weeks) could be provided for by the law to the state and/or its entities.
§ Other coercive measures
50. The threat and imposition of a coercive fine is a potential alternative to attachment. The coercive fine should be threatened and imposed in a particular amount, and enforced if necessary – where appropriate, through attachment. If necessary, the threat and imposition of coercive fines (imposed either on the respective legal person or on the public official responsible for the delay) may take place repeatedly.
§ Liability of the legal persons (administrations)
51. In case the non execution of a court decision is due to a fault of a public authority, damages can be paid by the respective legal person for moral and/or material prejudice.
§ Responsibility of individual staff members
52. Staff members are to be directed to utilise funds only in an earmarked manner. This means: money that is available to conduct proceedings is to be used only for that purpose.
53. Criminal law should be assessed as to whether other use of the money would be subject to criminal penalties as breach of public trust.
54. Utilisation of funding contrary to its earmarking is a breach of duty, with the result that the responsible staff member incurs personal liability for compensation of damages and that disciplinary measures are initiated (including suspension/dismissal from employment). To the extent that civil servants are affected, the existing civil service law should be perused for the existence of relevant provisions. To the extent that other employees are affected, labour law should be assessed to determine the extent to which relevant regulations allow termination of the employment relationship. If necessary, relevant regulations are to be established.
55. Additionally, existing public service law and labour law should be assessed with respect to whether the possibility exists to obtain recourse against the employee in the case of a relevant breach of duty.
iv) Efficiency of Bailiffs
56. Bailiffs should have the power to operate the execution against the Federation or its entities (attachment of goods, garnishment) according to the provisions of the law. The present situation of the Bailiffs system is not yet sufficient.
c) Measures concerning the relations between the Federation and its entities
57. In comparison with the assertion of claims against the Federation, problems may result because of the circumstance that the Federation may, as a general rule, not issue directives to the Subjects of the Federation. Independently thereof, the following possibilities exist:
i) Procedural Measures
58. When regulations are established that enable execution against the Federation, this also applies to execution against the Subjects of the Federation. It should additionally be pointed out that in cases where the Federation makes funds available to its Subjects, it may be provided that the creditor of the claim may obtain satisfaction from these funds as well, in conformity to their earmarking. As such, the creditor could turn to the Federation with the motion that money is paid to him from this “pot”. Another possibility would be, within the scope of garnishment proceedings, to attach the credit balance of the Subject of the Federation in the amount of the existing claim.
ii) Additional measures
59. Only practical measures are feasible as additional measures, such as earmarking of funds that are made available to the Subjects of the Federation and restriction on the Subjects of the Federation’s public authorities of disposition with regard to earmarked funds only to the stated purpose (earmarking).
60.Evaluated credits for execution of courts decisions could be adopted. Such a practise has to be developed at all levels of the Federation.
61. The financial impact of any draft law, especially those according social benefits, should be systematic. To that respect the experts support the idea of a new legislation addressing this issue.
62. Specific domestic remedies in “clone” cases could also be addressed: given the importance attached to the principle of subsidiarity within the ECHR system, specific domestic remedies, over and above those mentioned above, might be considered to respond to complaints about non-execution, which have already been or can be lodged before the European Court of Human Rights.
63. The experts suggest that the following issues could be addressed in a near future:
§ the establishment of a specific fund (see paragraph 28 above);
§ to provide the obligation on the state for default interest in case of delay in the payment (see paragraph 38 above.)
III. PROPOSED FOLLOW-UP
64. Considering the intricacy of the issues herein discussed, the experts have no pretensions of being exhaustive, but wish to deliver some ways which might be further explored and possibly experienced by the Russian authorities.
65. The experts remain at the disposal of the Russian authorities to work more in depth on some of the above mentioned recommendations if the Russian authorities wish to implement them.
66. It is therefore suggested that CEPEJ experts pursue their cooperation with the Russian authorities and complete their recommendations focusing in particular on key issues selected together with the Russian authorities. This further cooperation could include within a 12 to 18 month period the re-assessment of the situation of the execution of court decisions against the state or its entities, including the possible impact of the CEPEJ recommendations that would have been applied.
the first meeting of the joint working group on
"examination of problems connected with the order of execution of
decisions by national courts on civil cases on suits against the State and
its bodies "
28-29 June 2005
TUESDAY 28 June 2005
10:00- 10:30 Meeting with the Aide to the President of the Russian Federation -Head of the State Legal Di recto rate of the President of the Russian Federation Ms Larissa BRYCHEVA
10:30 Acquaintance of the working group.
Mr Yury BERESTNEV, referent of the State Legal Directorate of the President of the Russian Federation, Member of the CEPEJ
Mr Mikhail VINOGRADOV, specialist-expert of the State Legal Directorate of the President of the Russian Federation, national correspondent in the CEPEJ
Ms Svetlana BASTANZHIEVA, Director of the International Centre addressing federal relations and regional policy
Mr Alexander NOVIKOV, Director of the Economy, Policy and Law research centre
Ms Mireille HEERS, Vice-President of the Administrative Court of Versailles, Versailles, France
Mr Michael VRONTAKIS, Vice-President of the State Council, Member of the CEPEJ on behalf of Greece, Athens, Greece
Mr Theo SIMONS, Senior Vice-President of the Administrative Court of Appeal, Utrecht, The Netherlands
Mr Hans-Peter SCHMIESZEK, Head of the Office of the Administrative Procedure Law, Ministry of Justice, Berlin, Germany
Mr Stéphane LEYENBERGER, Secretary of the CEPEJ, Directorate General l -Legal Affairs, Council of Europe, Strasbourg
Ms Ekaterina KRYUCHKOVA, Director of the Department of the Representative of the Russian Federation at the European Court of Human Rights, State Legal Directorate of the President of the Russian Federation
Mr Valery KULEMIN, consultant of the Department of Economy and Finance of the Government of the Russian Federation
Mr Dmitry PCHELNIKOV, adviser of the Legal Department of the Government of the Russian Federation
Ms Nadezhda ZAKHAROV A, Director of the Legal Department of the Ministry of Finance of the Russian Federation
Ms Valentina MARTYNOVA, Director of the Legal Department of the Federal Bailiff's Service
Ms Irina FEDOTKINA, senior expert of the Department of Legal Regulation, Analysis and Control Over Activity of Dependent Federal Services of the Ministry of Justice of the Russian Federation
Ms Yulia KROKHINA, Provost on Scientific Work of the Russian Academy of Law of the Ministry of Justice of the Russian Federation
Ms Galina NILUS, lawyer of the Moscow Regional Bar, Member of the Council of the Federal Chamber of Lawyers of the Russian Federation
10:30 – 13:00 Working group session in the State Legal Directorate of the President of the Russian Federation
13:30 – 14:00 Meeting with the Representative of the Russian Federation at the European Court on Human Rights Mr Pavel LAPTEV
14:00 – 15:30 Lunch
16:00 – 17:30 Meeting in the Federal Chamber of Lawyers of the Russian Federation
WEDNESDAY 29 June 2005
10:00- 12:30 Working group session in the Ministry of Finance of the Russian Federation
12:30- 14:00 Lunch
14:00 -14:15 Meeting with the Director of the Legal Department of the Government Apparatus of the Russian Federation Mr Garri MINKH
14:15- 16:00 Working group session in the Government of the Russian Federation
16:00 Departure of the participants of the working group
20 – 21 October, 2005
Strasbourg, Palais de l’Europe
LIST OF PARTICIPANTS
Yury BERESTNEV, Director of Department, State Legal Directorate of the President of the Russian Federation (GGPU)
Julia KROKHINA, Russian Academy of Law of the Ministry of Justice of the Russian Federation
Alan KASAEV, Ministry of Justice of the Russian Federation
Valery KULEMIN, Government of the Russian Federation
Pavel LAPTEV, Governmental Agent of the Russian Federation to the European Court of Human Rights, Ministry of Foreign Affairs
Valentina MARTYNOVA, Federal Bailiff’s Service
Daria MIKHALINA, Consultant of the State Legal Directorate of the President of the Russian Federation
Galina NILUS, Federal Bar Chamber of the Russian Federation
Dmitry PCHELNIKOV, Government of the Russian Federation
Artem SIMONYAN, Ministry of Finance of the Russian Federation
Mikhail VINOGRADOV, Lawyer, State Legal Directorate of the President of the Russian Federation (GGPU)
Nadezda ZAKHAROVA, Ministry of Finance of the Russian Federation
Mireille HEERS, Deputy President of the Administrative Court of Appeal of Versailles, FRANCE
Hans-Peter SCHMIESZEK, Head of the Office of administrative procedural law, Federal Ministry of Justice, GERMANY
Theo SIMONS, Senior Vice-President, Administrative Court of Appeal, Netherlands
Michael VRONTAKIS, Member of the CEPEJ on behalf of Greece, Vice-President of the State Council, GREECE
CEPEJ SECRETARIAT, Fax: +33 3 88 41 37 45, e-mail: [email protected]
Stéphane LEYENBERGER, Secretary of the CEPEJ, Directorate General I - Legal Affairs,
Tel : +33 3 88 41 28 41, e-mail: [email protected]
Marie MORGAN-WELS, Assistant to the CEPEJ, Directorate General I -Legal Affairs
Tel. +33 3 90 21 5059, Fax : +33 3 88 41 37 45, e-mail: [email protected]
of the Committee of Ministers to member states
on the execution of administrative and judicial decisions in the field of administrative law
(adopted by the Committee of Ministers on 9 September 2003
at the 851st meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Considering that it is necessary to maintain the trust of private persons in the administrative and judicial system and that, for this reason, both decisions by administrative authorities entailing obligations for private persons and judicial decisions in the field of administrative law recognising rights for private persons should be executed;
Considering that the action of the administrative authorities presumes that their decisions are efficiently implemented by private persons;
Considering that the execution of administrative decisions should have regard to the rights and interests of private persons;
Recalling in this respect the general principles governing the protection of the individual in relation to the acts of administrative authorities as set out in Resolution (77) 31 and the principles concerning the exercise of discretionary powers by administrative authorities set out in Recommendation No. R (80) 2;
Recalling also Recommendation No. R (89) 8 on provisional court protection in administrative matters, requiring the competent judicial authority, if the execution of an administrative decision may cause severe damage to the private persons to whom it is addressed, to take appropriate measures of provisional protection;
Considering that the efficiency of justice requires that judicial decisions in the field of administrative law be executed, in particular when they are addressed to administrative authorities;
Recalling in this respect the rights protected by the European Convention on Human Rights, of which the execution of court decisions within a reasonable time must be regarded as an integral part;
Recalling also Recommendation No. R (84) 15 relating to public liability, recommending that member states set up appropriate machinery to ensure that a lack of funds does not prevent obligations of public authorities in the field of public liability from being satisfied;
Recalling, finally, Resolution No. 3 of the 24th Conference of European Ministers of Justice, held in Moscow from 4 to 5 October 2001 on a “general approach and means of achieving effective enforcement of judicial decisions”, inviting the Council of Europe to “identify common standards and principles at a European level for the enforcement of court decisions”,
Recommends that the governments of member states ensure the effective execution of administrative and judicial decisions in the field of administrative law by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation.
Appendix to Recommendation Rec(2003)16
I. Execution of administrative decisions regarding private persons
Scope of application: the principles contained in this part apply to any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons, either physically or legally.
a. Member states should provide an appropriate legal framework to ensure that private persons comply with administrative decisions that have been brought to their knowledge in accordance with the law, notwithstanding the protection by judicial authorities of their rights and interests.
b. Where it is not provided for by law that the introduction of an appeal against a decision entails automatic suspension, private persons should be able to request an administrative or judicial authority to suspend the implementation of the contested decision in order to ensure the protection of their rights and interests.
c. This possibility should be exercised within reasonable time limits in order to avoid unnecessarily blocking the action of the administrative authorities and to ensure legal certainty.
d. In deciding on the request for suspension, the public interest and the rights and interests of third persons should be taken into account by the administrative authority and, unless it is excluded by law, by the judicial authority.
a. The use of enforcement by administrative authorities should be subject to the following guarantees:
i. enforcement is to be expressly provided for by law;
ii. private persons against whom the decision is to be enforced are to be given the possibility to comply with the administrative decision within reasonable time except in urgent duly justified cases;
iii. the use of and the justification for enforcement are to be brought to the attention of the private persons against whom the decision is to be enforced;
iv. the enforcement measures used including any accompanying monetary sanctions are to respect the principle of proportionality.
b. In urgent cases, the extent of the enforcement procedure should be proportionate to the urgency of the case.
c. Private persons should be able to lodge an appeal before a judicial authority against the enforcement procedure in order to ensure the protection of their rights and interests.
d. If the administrative authority does not use enforcement procedure, those whose rights and interests are protected by the non‑implemented decision should be able to apply to a judicial authority.
II. Execution of judicial decisions regarding administrative authorities
1. General provisions
a. Member states should ensure that administrative authorities implement judicial decisions within a reasonable period of time. In order to give full effect to these decisions, they should take all necessary measures in accordance with the law.
b. In cases of non‑implementation by an administrative authority of a judicial decision, an appropriate procedure should be provided to seek execution of that decision, in particular through an injunction or a coercive fine.
c. Member states should ensure that administrative authorities will be held liable where they refuse or neglect to implement judicial decisions. Public officials in charge of the implementation of judicial decisions may also be held individually liable in disciplinary, civil or criminal proceedings if they fail to implement them.
2. Execution of judicial decisions entailing an obligation to pay a sum of money
a. Member states should ensure that where administrative authorities are obliged to pay a sum of money, they comply with this obligation within a reasonable period of time.
b. Interest payable by an administrative authority, due to non-implementation of judicial decisions entailing an obligation to pay a sum of money, should be no less than interest payable by a private person to an administrative authority in a similar situation.
c. It should be ensured that the administrative authority has appropriate provision to avoid a situation whereby a lack of funds would prevent it meeting its obligation to pay a sum of money.
d. In the case of non‑implementation by administrative authorities of judicial decisions entailing an obligation to pay a sum of money, member states should also consider opening up the possibility to seize the property of the administrative authorities within the limits prescribed by law.