Unresolved issue: how the CoE Committee of Ministers encourages Ukraine to comply with its own court decisions

At the meetings of the Committee of Ministers of the Council of Europe (hereinafter – the CoE), held on September 14-16, 2021 in Strasbourg, the issue of implementation of our state decisions in the groups of cases was considered once again (“Yuriy Mykolayovych Ivanov v. Ukraine” (application № 40450/04); Zhovner v. Ukraine” (application no. 56848/00); “Burmych and Others v. Ukraine” (application no. 46852/13).

Based on the results of the review of the Committee of Ministers of the Council of Europe (hereinafter – the Committee), a decision was made, the main points of which can be summarized as follows:

The Government of Ukraine was reminded of its obligation to fully address the multifaceted problem of non-compliance or delays in the execution of national court decisions, as well as Ukraine’s obligation to comply with the European Court of Human Rights under Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time, the Committee noted that currently, the Government is far from properly fulfilling this obligation;

The Committee noted Ukraine’s implementation of individual measures in 18 cases from the Zhovner / Ivanov group, and removed these cases from control by a relevant resolution; at the same time, the Government of Ukraine must provide information on the implementation of the other 31 decisions from this group;

The Committee expressed concern about the lack of progress in the implementation of the Action Plan and National Strategy (hereinafter – the National Strategy) for Resolving the Problem of Non-Enforcement of the Court Decisions which must be implemented by the state body, state enterprise, institution, or organization until 2022. These actions do not require the necessary budget allocations to implement and enforce the solution.

The Committee noted that reforming the institution of private performers does not solve the problems of enforcing national court decisions.

The Committee expressed interest in the constitutional submission of the Supreme Court to the Constitutional Court of Ukraine (approved by the Resolution of the Plenum of the Supreme Court of 18 September 2020) to review the constitutionality of moratorium laws and their compliance with the rule of law.

The Committee has called on the Government to finally establish a data accounting system that reflects the enforcement of national court rulings against the state.

The need to implement the package of legislative and institutional reforms set out in the National Strategy and Action Plan, as well as to provide sufficient budget allocations was also noted by the Committee.

The Committee instructed the Secretariat to prepare a detailed memorandum for the next hearing of the case on financial and budgetary allocations to ensure the automatic execution of decisions and on moratorium issues that impede the execution of decisions not in favor of the state-owned enterprises.

Also, given the urgent need to resolve the urgent issue, the Committee of Ministers of the CoE called on the Government of Ukraine to provide information on these issues by January 1, 2022, in particular on the progress in implementing the necessary reform package and decided to continue consideration of these groups at the March 2022 meeting. The Committee also instructed the Secretariat to prepare a draft interim resolution for consideration at the meeting if the Government of Ukraine will not show any progress, in particular in the implementation of the National Strategy and Action Plan.

Thus, following Rule 16 of the Committee of Ministers Procedure, in the process of monitoring the implementation of a resolution or amicable settlement, the Committee of Ministers may adopt interim resolutions, including information on the implementation process or, if necessary, concerns and/or proposals for the implementation.

In this context, the CoE has already issued 8 interim resolutions. The last one was issued in October 2020, which states that Ukraine has not fulfilled its obligations and has not made progress in implementing the decisions of the ECtHR by the deadline, in particular in the case of Burmych and Others v. Ukraine (more information about this is available here).

There are concerns that in March 2022, Ukraine will again face a negative interim resolution. The government will not have time to radically change the situation in the legal and institutional spheres in such a short time.

However, significant changes can be achieved in at least one aspect. In the coming months, the Law of Ukraine “On the State Budget for 2022” will be considered, and the amount of funds allocated to cover debts by decisions of national courts, including in the social sphere, will be important. At the same time, given the pandemic and the economic crisis it is contributing to, it would be too bold to predict significant budget allocations for such purposes.

Given the above, the CF “Right to Protection” (R2P) calls on the Government of Ukraine to take decisive and coordinated actions to address the systemic problem of non-compliance with national court decisions and will welcome all effective steps taken by the state in this direction.

Yaroslava Zvolinska,

Strategic Lawyer

CF “Right to Protection” (R2P)

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