CASE OF ZHOVNER AND 231 OTHER CASES AGAINST UKRAINE

Interim Resolution CM/ResDH(2008)1

on the execution of the judgements

of the European Court of Human Rights in 232 cases against Ukraine relative to the failure or serious delay in abiding by final domestic judicial decisions
delivered against the state and its entities as well as the absence of an effective remedy

(See Appendix for the list of cases in the Zhovner group)

(Adopted by the Committee of Ministers
on 6 March 2008,
at the 1020th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the great and steadily increasing number of judgments of the Court finding Ukraine in violation of Article 6, paragraph 1, of the Convention and of Article 1 of Protocol 1 to the Convention on account of the authorities’ failure to comply with or serious delay in abiding by final domestic judicial decisions delivered in the applicants’ favour;

Having regard to the fact that in several cases the Court also found a violation of Article 13 of the Convention in that the applicants had no domestic remedy whereby they might secured their right to an enforcement of a domestic judgment within a reasonable time as guaranteed by Article 6, paragraph 1, of the Convention;

Recalling the obligation of every state under Article 46, paragraph 1, of the Convention to abide by the judgments of the Court; this obligation includes the adoption of individual measures, as well as general measures preventing new, similar violations;

Stressing that the need for such measures is all the more pressing in cases of repetitive violations revealing an important structural problem;

Recalling in this respect Recommendation Rec(2004)6 of the Committee of Ministers’ to member states regarding the need to improve the efficiency of domestic remedies;

Having invited Ukraine to inform the Committee of Ministers of the measures taken or being taken in the light of these judgments and having examined the information provided by the Ukrainian authorities in this respect (as it appears in Appendix to this interim resolution);

Individual measures:

Recalling that according to Article 46 of the Convention, the respondent state has an obligation, beyond the payment of just satisfaction, to adopt under the Committee of Ministers’ supervision individual measures with a view to ensuring that the injured party is put, as far as possible, in the same situation as he/she enjoyed prior to the violation of the Convention (restitutio in integrum);

Noting that in cases where a violation has been established on account of the failure to enforce a domestic judgement, restitutio in integrum cannot be achieved unless and until this judgment is executed;

Noting with satisfaction that in the majority of cases the domestic judicial decisions at issue were enforced while the proceedings were pending before the European Court or shortly after its judgment;

Noting however with concern that in a number of cases, domestic judicial decisions delivered in the applicants’ favour remain unexecuted until now (see Appendix) and stressing that this situation is incompatible with the respondent’s obligation under Article 46 of the Convention to abide by the Court’s judgments;

General measures:

1) Measures to remedy the non-enforcement of judgments

Noting that the extent of the problem concerning the non-execution of domestic judicial decisions in Ukraine and the large number of people affected by it has been acknowledged within the Committee of Ministers from the outset;

Welcoming the Ukrainian authorities’ approach of taking specific measures pending the adoption of comprehensive legal reforms on sector-by-sector basis,

Sector-specific measures

Noting with satisfaction, in particular, the measures taken with a view to finding a global solution in respect of certain categories of persons in the applicants’ position in different problem sectors, thus contributing to eliminating the need to lodge complaints before the Court:

- debts owed to educational sector employees have been acknowledged and restructured so as to be paid by instalments over a period of 5 years;

- necessary funds have been foreseen in the State Budget of Ukraine for 2008 to cover the whole amount of the debt owed to the “Atomspetsbud” employees;

- a number of commissions for the monitoring of salary payments have been established within particular Ministries in charge of the debtor companies to ensure timely payment of salaries and other payments;

Encouraging the Ukrainian authorities to continue their efforts in further implementing the measures already announced and also to take similar measures in other specific sectors;

Recalling however that given the gravity and the extent of the systemic problem, these positive developments have to be complemented by other, more comprehensive reforms to ensure full compliance with the Court’s judgments and to prevent new, similar violations of the Convention;

Legislative measures

Noting with satisfaction that a number of initiatives have been taken by the Ukrainian authorities at legislative level to resolve the main problems identified by the Court in its judgments, in particular:

- a draft law to abolish the moratorium on the forced sale of property in companies in which the state holdings exceed 25%;

- a draft law on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time;

- a draft law to amend various legislative acts relating to the enforcement procedure to increase its efficiency.

Underlining the Convention organs’ consistent position that, while improving enforcement proceedings and/or their particular aspects is important, it is incumbent on the State to execute spontaneously all judicial decisions delivered against public authorities, without compelling the claimants to go through enforcement proceedings, and thus irrespective of the availability of funds;

Stressing that the lack of proper execution of judicial decisions severely affects the efficiency of State structures, frustrates the citizens’ legitimate expectations and their confidence in the judicial system;

Noting in this respect that such spontaneous execution continues to be hampered in particular by a number of persistent problems, notably by the lack of a clear and efficient execution procedure for judgments delivered against the State and its entities and by important shortcomings in the legislation governing budgetary procedures;

Considering further that the prevention of new violations of the Convention may be achieved through setting up domestic remedies against non-execution at the domestic level;

2) Measures regarding domestic remedies

Stressing, in view of the urgency of the situation, the need for priority action to improve domestic remedies in order to ensure that the state cannot without consequences delay or refuse to execute final domestic judgements delivered against it, including at least adequately compensating for any delay in execution and possibilities to accelerate pending execution proceedings;

Welcoming in this respect the draft law providing for domestic remedies against the excessive length of enforcement proceedings, namely a draft law On Amendments to Certain Legal Acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time);

Deploring however that no progress in adopting of this draft law has been achieved since 2005;

Recalling also in this respect the Convention organs’ consistent position that the effectiveness of compensatory remedies is contingent of the existence of adequate budgetary provision allowing swift payment of compensation awards;

Stressing that the need for special budgetary arrangements is all the greater in countries facing a systemic problem of non-enforcement of judicial decisions against the state and its entities;

Noting in addition that the setting up of a merely compensatory or acceleratory remedy may not suffice to ensure rapid and full compliance with obligations under the Convention, and that further avenues must be explored, e.g. through the combined pressure of various domestic remedies (punitive damages, default interest, adequate possibility of seizure of state assets, etc), provided that their accessibility, sufficiency and effectiveness in practice are convincingly established;

Noting in this respect that the experience of other states may usefully be taken into account, e.g. as reflected in the Conclusions of the Round Table on “Non-enforcement of domestic courts decisions in member states: general measures to comply with European Court judgments” held on 21‑22 June 2007 in Strasbourg;

Recalling the consistent position of the Convention organs that the setting up of domestic remedies does not relieve states from their general obligation to solve structural problems underlying the violations;

STRONGLY URGES all Ukrainian authorities concerned to comply without further delay with their obligation under the Convention to enforce those domestic judgments where this has not been done.

EXPRESSES PARTICULAR CONCERN that notwithstanding a number of legislative and other important initiatives, which have been repeatedly brought to the attention of the Committee of Ministers, little progress has been made so far in resolving the structural problem of non-execution of domestic judicial decisions;

STRONGLY ENCOURAGES the Ukrainian authorities to enhance their political commitment in order to achieve tangible results and to make it a high political priority to abide by their obligations under the Convention and by the Court’s judgments, to ensure full and timely execution of the domestic courts’ decision;

CALLS UPON the Ukrainian authorities to set up an effective national policy, coordinated at the highest governmental level, with a view to effectively implementing the package of measures announced and other measures which may be necessary to tackle the problem at issue;

URGES the Ukrainian authorities to adopt as a matter of priority the draft laws that were announced before the Committee of Ministers, in particular the law On Amendments to Certain Legal Acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time);

ENCOURAGES the authorities, pending the adoption of the draft laws announced, to consider the adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular:

- to consider the adoption of measures similar to those taken in the education sector in other sectors which raise similar problems;

- to take measures to ensure effective management and control over state entities and enterprises to avoid debts arising to employees;

- to ensure in practice the effective liability of civil servants for non-enforcement;

- to award compensation for delays in enforcement of domestic judicial decisions directly on the basis of the Convention’s provisions and the Court’s case-law as provided by the Law on enforcement of judgments and the application of the case-law of the European Court;

INVITES the Ukrainian authorities to consider, in addition to the measures announced, appropriate solutions in the following areas:

                   to improve budgetary planning, particularly by ensuring compatibility between the budgetary laws and the state’s payment obligations;                  to ensure the existence of specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations; and                  to ensure the existence of an effective procedure and funds for the execution of domestic courts’ judgements delivered against the state;

INVITES the competent Ukrainian authorities to ensure wide dissemination of this Interim Resolution to the government, the parliament and the judiciary;

DECIDES to resume consideration of the present issues in the context of the Court’s judgments concerned at the latest at the 1035th meeting (16-18 September 2008) (DH).

Appendix to Interim Resolution CM/ResDH(2008)1

Information provided by the Ukrainian authorities in the context of the examination by the Committee of Ministers of 232 cases against Ukraine relative to failure or serious delay in abiding by final domestic judicial decisions delivered against the state and its entities as well as the absence of an effective remedy
(Zhovner group of cases)

Measures already taken

Individual measures:

In the majority of these cases, the domestic judicial decisions, the non-enforcement of which was criticised by the Court, have been executed.

However, in a number of cases (listed below) the domestic courts’ decisions remain unenforced notwithstanding the violations found in this respect by the Court. Urgent individual measures are therefore required to comply with the Court’s judgements and to put an end to the continuing violations of the Convention.

27282/03Sivokoz, judgment of 04/10/2005, final on 04/01/2006

22219/02Drobotyuk, judgment of 20/09/2005, final on 20/12/2005

71186/01Fuklev, judgment of 07/07/2005, final on 30/11/2005

15366/03Chernyayev, judgment of 26/07/2005, final on 30/11/2005

41073/02Andrusenko, judgment of 10/08/06, final on 10/11/06

23390/02Ishchenko and others, judgment of 08/11/2005, final on 08/02/2006

10174/02Khanenko, judgment of 13/12/2005, final on 12/04/2006

41030/02Kurshatsova, judgment of 29/11/2005, final on 01/03/2006

22972/02Lyutykh, judgment of 13/09/2005, final on 13/12/2005

9719/02Pomazanyy and Shevchenko, judgment of 04/04/2006, final on 04/07/2006

58312/00Trykhlib, judgment of 20/09/2005, final on 20/12/2005

39404/02Mukhin, judgment of 19/10/2006, final on 19/01/2007)

32166/04Sarafanov and others, judgement of 14/12/2006, final on 14/03/2007

27349/03Kozhanova, judgment of 22/11/2005, final on 22/02/2006

35765/05+ erevyanko and Beletskiy, judgement of 11 October 2007, final on 11/01/2008

42478/04Mirvoda, judgement of 7/12/2007, final 07/03/2007

25476/02Pogrebna, judgement 15/02/2007, final 09/07/2007

General measures:

A) Measures taken to resolve the problems at the basis of the violations

The Ukrainian authorities have recognised the existence and the importance of the problem highlighted by these judgments in a number of policy papers containing more global strategies since 2006, in particular:

- Action Plan for the Improvement of the Judicial System and Ensuring Fair Trial in Ukraine in Line with European Standards (approved by the Decree of the President of Ukraine no. 242/2006 of 20/03/2006);

- National Action Plan for Ensuring Due Enforcement of Courts Decisions (approved by the Decree of the President of Ukraine by the Decree No. 587/2006 of 27/06/2006.

A number of measures to remedy the underlying problem have been and are being taken, including legislative initiatives and specific measures to ensure rapid funding in the areas particularly concerned by this problem:

- the debt owed to educational sector employees have been acknowledged and restructured so as to be paid out by instalments within the period of 5 years;

- a number of salary payment monitoring commissions has been established within particular Ministries in charge of the debtor companies to ensure timely payment of salaries and other payments;

- necessary funds have been envisaged in the State Budget of Ukraine for 2008 to cover the whole amount of the debt owed to the “Atomspetsbud” employees;

- a draft law abolishing the moratorium on the forced sale of property in companies in which the state holdings exceed 25% has been elaborated;

- a draft law to amend various legislative acts relating to enforcement procedure in order to increase its efficiency has been elaborated.

The authorities also indicated that prosecutors’ control over proper enforcement of the domestic courts’ judgements has been reinforced. A number of criminal proceedings were initiated against the top management of companies wilfully delaying the payment of salaries or against officials involved in the enforcement procedures.

The authorities have furthermore ensured regular translation and the publication of all the judgments from Zhovner group. They were translated into Ukrainian and placed on the Ministry of Justice’s official website (). The judgments were also published in the official government’s print outlet – Official Herald of Ukraine [Ofitsiynyi Visnyk Ukrayini] as well as in other publications and journals, and thus are easily available to the authorities and to the public.

B) Legislative measures to introduce a domestic remedy in cases of excessive length of judicial proceedings

Since 2005 the Ukrainian authorities have informed the Committee about the draft law on Amendments to Certain Legal Acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time), which has been modified on several occasions, to introduce in domestic law an effective remedy with respect to the length of the enforcement proceedings, providing a right to apply for compensation for delays and sanctions against those responsible.

C) Further measures expected

In the context of the Execution Assistance programme, the Council of Europe organised on 21‑22 June 2007, in Strasbourg, a high-level Round Table which involved representatives of the Council of Europe and the authorities of different states confronted with this issue, to discuss solutions to the structural problems of non-enforcement of domestic court decisions. The constructive exchanges between different participants led to the adoption of Conclusions in which the main problems underlying non-enforcement were identified and a range of possible solutions to be envisaged by the authorities while elaborating their respective action plans were proposed.

Furthermore, a Memorandum on the non-enforcement of domestic judicial decisions in Ukraine (CM/Inf/DH(2007)30rev) was prepared by the Secretariat to assist the Committee of Ministers and the Ukrainian authorities in reflection on the underlying problems. The Memorandum was issued and declassified at the 997th meeting (June 2007). The Memorandum takes stock of the current situation in each area of concern and points out the issues that remain to be considered with a view to ensuring the Ukraine’s compliance with the European Court’s judgments.

The Ukrainian government stresses Ukraine’s commitment to abide fully by the European Court’s judgment in this, as indeed in all other cases, and the authorities will intensify their efforts in the adoption of the measures already announced as well as all other measures which may necessary to prevent new similar violations of the Convention.

 

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