SC Judges discuss issues related to enforcement of judgments of the European Court of Human Rights

The current situation with the enforcement of judgments in the group of cases Zhovner / Yuriy Ivanov / Burmych and others v. Ukraine, the status of calculation of the state's debt for unenforced judgments of national courts, the impact of the war on the enforcement process, as well as obstacles to enforcement, in particular the lack of coordination between social legislation, administrative and judicial practice and budgetary allocations, were discussed during the roundtable on the state of enforcement of judgments of the European Court of Human Rights in the said group of cases.

Mykhailo Smokovych, President of the Administrative Cassation Court of the Supreme Court, noted that there is an urgent need to review the current legislative practice where a law is passed and then the state is unable to implement it due to lack of funds. This leads to an increase in the number of lawsuits filed by citizens against the state and public authorities. The need to review the legislative activity on social payments with a view to strengthening the financial justification of domestic legislation and its compliance with the Budget Law is one of the effective ways to solve the problem of timely and proper enforcement of court decisions.

The Head of the SC Administrative Cassation Court noted that the court decision must be executed in a timely manner, i.e. within a reasonable time, properly - in the manner determined by the court - and fully (in accordance with the reasoning and operative parts of the court decision), since the execution of a court decision is the last important stage of the case. Without proper enforcement of a court decision, both the trial and the judgment become meaningless. In administrative litigation, the binding nature of a judicial decision is very important. Indeed, given the role of administrative proceedings in effectively protecting the rights, freedoms and interests of individuals and the rights and interests of legal entities against violations by public authorities, judicial protection will only be effective if the court decision is timely and properly enforced.

Vitalii Urkevych, Secretary of the Grand Chamber of the Supreme Court, spoke about the legal conclusions of the Grand Chamber on the application of social legislation, in particular on the amount of the pension increase for an unemployed pensioner living in the territory of guaranteed voluntary resettlement.

Such an increase is payable in the amount specified in Article 39 of the Law of Ukraine ‘On the Status and Social Protection of Citizens Affected by the Chornobyl Disaster’, which is equal to two subsistence minimums for able-bodied persons established as of 1 January of the calendar year. This conclusion was formulated by the Grand Chamber of the Supreme Court in its resolution of 4 April 2024 in case No. 240/19227/21.

The speaker also drew attention to the conclusions of the Grand Chamber of the Supreme Court, which are set out in the resolution of 3 October 2023 in case No. 686/7081/21. Resolving the issue of application of Art. 625 of the Civil Code of Ukraine to the disputed legal relations, the Grand Chamber of the Supreme Court came to the conclusion that in case of violation by the state-debtor of the term of execution of the court decision on recovery of funds from the state budget of Ukraine in favour of the recovering creditor (delay in performance of the monetary obligation of the state to compensate for the damage caused by it and confirmed by the court decision), Art. 625 of the Civil Code of Ukraine and part 1 of Article 5 of the Law of Ukraine "On State Guarantees for the Enforcement of Court Decisions" establish an effective compensation mechanism for protection against such violation, which allows the creditor to recover from the state 3% per annum of the amount not paid on time under a valid court decision and inflation losses for the period of delay in the execution of this decision.

The provision of part 2 of Article 625 of the Civil Code of Ukraine regarding the legal consequences of delay in the fulfilment of a financial obligation by a debtor (in particular, the state) applies to cases of violation of the state's financial obligation to compensate for the damage caused by it confirmed by a court decision from the day after the expiration of three months from the submission of the enforcement document to the State Treasury Service of Ukraine and inclusive of the day preceding the day of full execution of the court decision.

A different approach to determining the beginning of the state's delay (e.g. identifying such a moment with the date of the wrongful act or the date of the entry into force of a court decision on the recovery of compensation from the state) may lead to unfair behaviour on the part of the recovering party (in particular, failure to submit an enforcement document to the State Treasury of Ukraine for a long time in order to obtain an additional opportunity to recover 3% per annum and inflation losses from the state).

Thus, the application by the court of first instance of the provision of part 2 of Article 625 of the Civil Code of Ukraine to the disputed legal relations is correct. However, 3 % per annum and inflationary losses for delay in the execution of the court decision should be recovered in favour of the plaintiff not from the date of entry into force of the first instance court decision in the case on recovery of the value of the unreturned ordinary registered shares of the OJSC at the expense of the state budget of Ukraine, but from the day following the expiry of three months from the submission of the enforcement document to the State Treasury Service of Ukraine and inclusive of the day preceding the day of full execution of the court decision.

In addition, Vitalii Urkevych shared his thoughts on certain draft laws aimed at improving the mechanism of judicial control over the enforcement of court decisions, stressing that such mechanisms should be as simple and effective as possible. With regard to the moratoria on the execution of judicial decisions, which is one of the issues being monitored in the context of the implementation of the ECtHR judgment in Burmych and Others v. Ukraine, the Secretary of the SC Grand Chamber noted that the Supreme Court had raised the question of their constitutionality in its three constitutional submissions to the Constitutional Court of Ukraine.

Supreme Court Judge in the Administrative Cassation Court Andrii Rybachuk observed that there is a practice of adopting legislation in the field of social security without a proper economic analysis or justification, and without consideration of the actual possibilities of budget financing. This has led to a significant number of applications by citizens to the European Court of Human Rights, which have been dealt with and decided in their favour by all national courts. However, these citizens were unable to receive certain social benefits. In other words, the judgment was not enforced.

As a result of the restrictions on social benefits, the courts are receiving a large number of complaints from citizens against state authorities for calculating reduced social benefits and misapplying the law. Despite the court rulings in favour of citizens, the state was unable to enforce them due to lack of funds.

There is an urgent need to revise the existing legislative practice when a law is first adopted and then the state is unable to implement it due to a lack of adequate funding. This leads to an increase in the number of lawsuits filed by citizens against the state and public authorities.

The need to review the legislative activity on social payments with a view to strengthening the financial justification of domestic legislation and its compliance with the Budget Law is one of the effective ways to solve the problem of timely and proper enforcement of court decisions.

Oleksandr Prokopenko, Supreme Court Judge of the Administrative Cassation Court, pointed out that in order to ensure the constitutional order in the judiciary in Ukraine, guarantees of judicial independence, access to justice for citizens and the right of everyone to have their case heard by an independent and impartial court within the time limits established by law, and to prevent narrowing of the content and scope of existing rights and freedoms when adopting new laws or amending existing ones, the Supreme Court is empowered to make submissions to the Constitutional Court of Ukraine if it believes that the latter does not comply with the Constitution of Ukraine.

Participants also discussed the issue of moratoria prohibiting the enforcement of court judgments against the state or state-owned business entities, as well as possible short and long term solutions to the problem.

As a result of the roundtable, a joint agreement was reached on the need to direct efforts and continue cooperation in addressing the problem of non-execution and delayed execution of national court judgments in Ukraine, taking into account the recommendations provided in the Memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights, which identifies the main enforcement measures (with a focus on social payments and moratoria).

The event was attended by representatives of the Council of Europe, legislative, executive and judicial authorities of Ukraine.

The event was organised by the Ministry of Justice of Ukraine in cooperation with the Department for the Execution of Judgments of the European Court of Human Rights, Directorate General for Human Rights and Rule of Law of the Council of Europe, and the Council of Europe projects ‘Support to the functioning of justice in the war and post-war context in Ukraine’ and ‘Strengthening social protection in Ukraine’.