Supreme Court Clarified under Which Circumstances the ECHR Judgment Shall Be Considered as Executed Completely

Judgment of the European Court of Human Rights in the case “Vitalii Ivanovych Kulyk v. Ukraine and 191 other applications” will be completely executed after the payment of 1000 EUR to each applicant and the execution of judgments of national courts, the non-execution of which has become the grounds for application to the ECHR.

This is noted in the resolution of the Administrative Cassation Court within the Supreme Court adopted under the result of cassation review of a case, in which the plaintiff asked to acknowledge the activity of the Ministry of Justice of Ukraine in executive proceedings, which resulted in the non-execution of the ECHR judgment in the case Vitalii Ivanovych Kulyk v. Ukraine and 191 other applications, as illegal. The inactivity consisted of the non-execution of national courts’ judgments, adopted in his (plaintiff’s) favour in 2010 – 2011.

Courts of first and appeal instances have partially satisfied the claim. The defendant appealed these judgments in cassation procedure referring to the fact that the state executor had held all necessary and provided by law actions as for the execution of the ECHR judgment adopted in the plaintiffs’ favour.

The Supreme Court dismissed the cassation complaint of the Ministry of Justice of Ukraine noting that arguments provided in the complaint did not refute the opinions of lower courts.

The dispute concerns the execution of the ECHR judgment of 15 June 2017 in the case Vitalii Ivanovych Kulyk v. Ukraine and 191 other applications, in which it is noted that the Government of Ukraine, as the defendant state, has submitted unilateral declarations in order to settle issues raised in these applications (concerning the acknowledgement of duration of national courts’ judgments execution); the ECHR was proposed to eliminate the applications from the Register of cases pursuant to Article 37 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Government has undertaken to execute the national courts’ judgments noted in the annex, which should be executed, as well as to pay 1000 EUR to each applicant.

The ECHR had adopted a judgment as for the approval of the unilateral declaration conditions; the Government of Ukraine received notice about this fact on 24 July 2017.

Performing the functions of a body responsible for ensuring the representation of Ukraine in the ECHR and the execution of its judgments has been entrusted to the Ministry of Justice (Resolution of the Cabinet of Ministers of Ukraine of 31 May 2006 No. 784 “On Measures for the Implementation of the Law of Ukraine “On the Execution of Judgments and Application of Case Law of the European Court of Human Rights””), a structural subdivision of which was represented by the State Executive Service.

The Supreme Court put emphasis on the correctness of lower courts’ opinions, which had noted that the requirements of the Law of Ukraine “On the Execution of Judgments and Application of Case Law of the European Court of Human Rights” and provisions of the Procedure for the Application of Funds Provided in the State Budget for Payments Related to the Execution of Decisions of Foreign Jurisdictional Bodies Adopted on the Grounds of Results of Reviewing Cases against Ukraine (approved with the Resolution of the Cabinet of Ministers of Ukraine of 7 March 2007 No. 408) provided that the payment of funds upon the ECHR judgment in terms of the execution of a national court’s judgments and payment of penalty fees should be performed upon the demands of the state executor – the SES of Ukraine, and the payment of funds for the execution of the national court’s judgment should not be held at the defendant’s expense upon the national court’s judgment, but from the relevant budgetary programme of the State Budget of Ukraine.

At the same time, in this case the state executor, while performing executive actions regarding the execution of the ECHR judgments, has not taken into account the prescriptions of the abovementioned Law and the Procedure No. 408, as well as the Procedure of the Interaction between the State Executive Service of Ukraine and the Secretariat of the Government Agent before the European Court of Human Rights while Ensuring the Representation of Ukraine in the European Court of Human Rights (approved with the Order of the Ministry of Justice of Ukraine of 23 September 2013 No. 1989/5), which are special ones in disputable relations, and was mistakenly guided only with the Law of Ukraine “On Executive Proceedings”, the Procedure of Debt Servicing upon Court’s Judgments Whose Execution is Guaranteed by the State (approved with the Resolution of the Cabinet of Ministers of Ukraine of 3 September 2014 No. 440) and the Procedure of the Execution of Judgments on the Recovery of Funds of State and Local Budgets or Debtors (approved with the Resolution of the Cabinet of Ministers of Ukraine of 3 August 2011 No. 845).

The state executor, contrary to the requirements of item 9 of the Procedure No. 1989/5, within a month from the day of receiving the authentic translation of the ECHR judgment has not organized the examination of the national court’s judgment execution, has not taken measures as for its execution, has not informed the Secretariat of the Government Agent before the European Court of Human Rights about the impossibility to execute the judgment of the national court. Therefore, the measures taken by the state executor did not result in the ECHR judgment execution in terms of national courts’ judgment execution, since the costs on the grounds of the noted judgments had not been paid in the plaintiff’s favour.

Thus, the state executor has not performed actions provided with the Law of Ukraine “On the Execution of Judgments and Application of Case Law of the European Court of Human Rights”, requirements of the Procedure No. 408 and the Procedure No. 1989/5, and the defendant, as the Representative Body, has not performed the appropriate coordination of the execution of the ECHR judgment in the case Vitalii Ivanovych Kulyk v. Ukraine and 191 other applications in terms of the execution of the abovementioned judgments of local courts in the plaintiff’s favour.

Concerning the arguments of the defendant’s cassation appeal as for the fact that the ECHR judgment is executed because the compensation has been paid to the plaintiff upon this judgment, the panel of judges of the Administrative Cassation Court has noted that the execution of the Judgment is represented with the payment of compensation to the plaintiff, as well as with taking additional individual measures: a) renewal, as far as possible, of the previous legal condition of the Plaintiff before the Convention violation (restitutio in integrum); b) other measures provided in the judgment (Article 1, Part 2 of Article 10 of the Law of Ukraine “On the Execution of Judgments and Application of Case Law of the European Court of Human Rights”).

Taking additional individual measures and execution of the ECHR judgments is also represented with the execution of national courts’ judgments, the non-execution of which has become the grounds for the application to the ECHR (item 12 of the Procedure No. 1989/5 and sub-item 2 of the Procedure No. 408).

Resolution of the Supreme Court of 17 March 2020 in the case No. 820/4832/17 (administrative proceedings No. К/9901/31717/18) – http://www.reyestr.court.gov.ua/Review/88245781.