(Application no. 40450/04)
15 October 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Yuriy Nikolayevich Ivanov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 22 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings against the military unit
B. Proceedings against the bailiffs
C. The application to the Court
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine of 26 June 1996
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
B. Criminal Code of 2001
“1. Wilful failure of an official to comply with a sentence, judgment, ruling or resolution of a court which has entered into force, or hindrance of its enforcement,
shall be punishable by a fine [in the amount] of five hundred to one thousand times the statutory non-taxable monthly income, or by deprivation of liberty for a term of up to three years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.
2. The same actions committed by an official occupying a responsible or especially responsible position, or by a person previously convicted of the crime envisaged by this Article, or [the same actions] causing substantial damage to the legally protected rights and freedoms of citizens, State or public interests or the interests of legal entities,
shall be punishable by restraint of liberty for a term of up to five years, or by deprivation of liberty for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.
3. Wilful failure of an official to comply with a judgment of the European Court of Human Rights
shall be punishable by deprivation of liberty for a term of three to eight years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.”
C. Enforcement Proceedings Act of 21 April 1999
D. State Bailiffs' Service Act of 24 March 1998
E. Act on Economic Activities in the Armed Forces of Ukraine of 21 September 1999
III. Relevant COUNCIL of europe DOCUMENTS
A. Recommendation Rec(2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies, 12 May 2004
“review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court...”
“... The Court is confronted with an ever-increasing number of applications. This situation jeopardises the long-term effectiveness of the system and therefore calls for a strong reaction from contracting parties. It is precisely within this context that the availability of effective domestic remedies becomes particularly important. The improvement of available domestic remedies will most probably have quantitative and qualitative effects on the workload of the Court:
on the one hand, the volume of applications to be examined ought to be reduced: fewer applicants would feel compelled to bring the case before the Court if the examination of their complaints before the domestic authorities was sufficiently thorough;
on the other hand, the examination of applications by the Court will be facilitated if an examination of the merits of cases has been carried out beforehand by a domestic authority, thanks to the improvement of domestic remedies...
13. When a judgment which points to structural or general deficiencies in national law or practice ('pilot case') has been delivered and a large number of applications to the Court concerning the same problem ('repetitive cases') are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system.
14. The introduction of such a domestic remedy could also significantly reduce the Court's workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution...
16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation...
18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases...”
B. Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem, 12 May 2004
“ ... I. as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments;
II. to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court.”
C. Interim Resolution of the Committee of Ministers on the execution of the judgments 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, 6 March 2008
“The Committee of Ministers...
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...”
D. Decision of the Committee of Ministers on 300 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments, 8 June 2009
1. recalled that, as acknowledged by the Committee of Ministers in its Interim Resolution CM/ResDH(2008)1, the non-enforcement of domestic judicial decisions constitutes a structural problem in Ukraine;
2. noted that there are still a number of cases in which domestic court decisions remain unenforced despite the judgments of the European Court;
3. noted with concern that, notwithstanding the efforts made by the Ukrainian authorities in adopting interim measures, the structural problem underlying the violations has not been solved;
4. observed that failure to adopt all necessary measures, including previously announced legislative measures, has resulted in a steady increase in the number of new applications lodged with the European Court concerning non-enforcement of domestic judicial decisions;
5. noted with concern in this context that priority has not been given to setting up a domestic remedy in case of non-enforcement or delayed enforcement of domestic judicial decisions, despite the Committee's repeated calls to this effect;
6. called upon the Ukrainian authorities once again to take rapidly the necessary action to ensure Ukraine's compliance with its obligations under the Convention, and in particular to reconsider the various proposal for reforms made during the examination of these cases (see, in particular, CM/Inf/DH(2007)30 revised and CM/Inf/DH(2007)33);
7. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), possibly in light of a draft interim resolution taking stock of the general and individual measures adopted by then and other outstanding issues if any.”
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”
A. The parties' submissions
B. The Court's assessment
(a) General principles
(b) Application of these principles to the present case
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties' submissions
B. The Court's assessment
(a) General principles
“98. As regards more particularly length-of-proceedings cases, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006 ...). Likewise, in cases concerning non-enforcement of judicial decisions, any domestic means to prevent a violation by ensuring timely enforcement is, in principle, of greatest value. However, where a judgment is delivered in favour of an individual against the State, the former should not, in principle, be compelled to use such means (see, mutatis mutandis, Metaxas, cited above, § 19): the burden to comply with such a judgment lies primarily with the State authorities, which should use all means available in the domestic legal system in order to speed up the enforcement, thus preventing violations of the Convention (see, mutatis mutandis, Akashev, cited above, §§ 21-22).
99. States can also choose to introduce only a compensatory remedy, without that remedy being regarded as ineffective. Where such a compensatory remedy is available in the domestic legal system, the Court must leave a wider margin of appreciation to the State to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned. The Court is nonetheless required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the Convention principles, as interpreted in the light of the Court's case-law (see Scordino, cited above, §§ 187-191). The Court has set key criteria for verification of the effectiveness of a compensatory remedy in respect of the excessive length of judicial proceedings. These criteria, which also apply to non-enforcement cases (see Wasserman, cited above, §§ 49 and 51), are as follows:
an action for compensation must be heard within a reasonable time (see Scordino, cited above, § 195 in fine);
the compensation must be paid promptly and generally no later than six months from the date on which the decision awarding compensation becomes enforceable (ibid., § 198);
the procedural rules governing an action for compensation must conform to the principle of fairness guaranteed by Article 6 of the Convention (ibid., § 200);
the rules regarding legal costs must not place an excessive burden on litigants where their action is justified (ibid., § 201);
the level of compensation must not be unreasonable in comparison with the awards made by the Court in similar cases (ibid., §§ 202-206 and 213).
100. On this last criterion, the Court indicated that, with regard to pecuniary damage, the domestic courts are clearly in a better position to determine the existence and quantum. The situation is, however, different with regard to non-pecuniary damage. There exists a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage (see Scordino, cited above, §§ 203 204, and Wasserman, cited above, §50). The Court considers this presumption to be particularly strong in the event of excessive delay in enforcement by the State of a judgment delivered against it, given the inevitable frustration arising from the State's disregard for its obligation to honour its debt and the fact that the applicant has already gone through judicial proceedings and obtained success...”
(b) Application of these principles in cases against Ukraine and in the present case
“30. The Government invoked the possibility for the applicant to challenge any inactivity or omissions on the part of the Bailiffs' Service and the Treasury, and to seek compensation for pecuniary and non-pecuniary damage caused by them. In the present case, however, the debtor is a State body and the enforcement of judgments against it, as it appears from the case file, can only be carried out if the State foresees and makes provision for the appropriate expenditures in the State Budget of Ukraine by taking the appropriate legislative measures. The facts of the case show that, throughout the period under consideration, the enforcement of the judgment in question was prevented precisely because of the lack of legislative measures, rather then by a bailiff's misconduct. The applicant cannot therefore be reproached for not having taken proceedings against the bailiff (see Shestakov v. Russia, decision, no. 48757/99, 18 June 2002). Moreover, the Court notes that the Government maintained that there were no irregularities in the way the Bailiffs' Service and the Treasury had conducted the enforcement proceedings.
31. In these circumstances, the Court concludes that the applicant was absolved from pursuing the remedy invoked by the Government.
...48. The Court refers to its findings (at paragraphs 30-31 above) in the present case concerning the Government's argument regarding domestic remedies. For the same reasons, the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings. Accordingly, there has been a breach of this provision...”
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
A. The parties' submissions
B. The Court's assessment
1. Application of the pilot-judgment procedure
81. In line with its approach in the case of Burdov (no. 2) (cited above, §§ 129-130), which concerned similar issues of non-enforcement of domestic decisions in the Russian Federation, the Court considers it appropriate to apply the pilot-judgment procedure in the present case, given notably the recurrent and persistent nature of the underlying problems, the large number of people affected by them in Ukraine and the urgent need to grant them speedy and appropriate redress at domestic level.
2. Existence of a practice incompatible with the Convention
88. In view of the foregoing, the Court concludes that the violations found in the present judgment were neither prompted by an isolated incident, nor were they attributable to a particular turn of events in this case, but were the consequence of regulatory shortcomings and administrative conduct of the State authorities with regard to the enforcement of domestic decisions for which they were responsible. Accordingly, the situation in the present case must be qualified as resulting from a practice incompatible with the Convention (see Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999 V, and Burdov (no. 2), cited above, §§ 134-135).
3. Adoption of general measures to remedy the structural problems underlying violations of the Convention in the present case
4. Procedure to be followed in similar cases
96. In the present circumstances, the Court finds it necessary to adjourn the examination of similar cases pending the implementation of the relevant measures by the respondent State. The Court considers it appropriate to differentiate between cases already pending before it and those that may arrive after the delivery of the present judgment, thereby giving the respondent State an opportunity to settle the former category of cases in various ways, as indicated below.
(a) Applications lodged after the delivery of the present judgment
(b) Applications lodged before the delivery of the present judgment
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final:
(i) the outstanding debt under the judgments of 22 August 2001 and 29 July 2003 and EUR 174 (one hundred and seventy-four euros) to cover inflation-linked adjustments;
(ii) EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage and EUR 1,740 (one thousand seven hundred and forty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(b) that the above sums be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
1. About 296 euros (EUR).
2. About EUR 513.
3. About EUR 10.
4. About EUR 513.
1. About EUR 256.
2. About EUR 171.
1. About EUR 174.
2. About EUR 413.
3. About EUR 1,327.