CASE OF BURMYCH AND OTHERS v. UKRAINE

1. The case originated in five applications (nos. 46852/13, 47786/13, 56605/13, 54125/13 and 3653/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Ms Lidiya Ivanivna Burmych, Mr Grygoriy Yaremchuk, Mr Oleg Varava and Mr Yuriy Neborachko as well as a private joint-stock company, Izolyatsiya, PAT, registered in Donetsk, Ukraine (“the applicants”), on 9 July 2013, 16 July 2013, 8 August 2013, 16 August 2013 and 11 December 2013, respectively.
2. The first four applicants were represented respectively by Ms T.O. Nevmerzhytska, a lawyer practising in Zhytomyr, Ukraine, Mr S.V. Galapyuk, a lawyer practising in Zhytomyr, Ukraine, Mr I.V. Zybachynskyy, a lawyer practising in Kyiv, Ukraine and Ms O.O. Dmytrychenko, a lawyer practising in Kremenchuk, Ukraine. The fifth applicant was represented by Mr A. Taranovskyy, a lawyer practicing in Kyiv, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.
3. The applicants complained of non-enforcement or delayed enforcement of domestic court decisions given in their favour. They alleged a violation of their rights guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The first and fifth applicants raised a further complaint under Article 13 of the Convention as regard the lack of effective remedy in domestic law.
4. Between 10 December 2013 and 20 January 2015 the applications were communicated to the Government.
5. On 8 December 2015, after having consulted the parties, a Chamber of the Fifth Section of the Court, composed of Judges Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Helena Jäderblom and Aleš Pejchal, decided to relinquish jurisdiction in favour of the Grand Chamber in the above cases, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court).
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.
7. Following the Grand Chamber ’ s decision of 16 March 2016 not to hold a hearing, the applicants and the Government each filed written observations on the admissibility and merits of the applications referred to in paragraph 1 above.
I. THE CIRCUMSTANCES OF THE CASE
8. The applications in the present case concern prolonged non ‑ enforcement of domestic final judicial decisions. They raise issues similar to those examined in the pilot judgment in the case of Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, 15 October 2009; hereinafter “ Ivanov” or “ the Ivanov judgment”). They are part of a group of 12, 143 Ivanov -type follow-up applications (hereinafter also referred to as “ Ivanov ‑ type cases ”).
9. Accordingly, before providing a description of the relevant facts and proceeding to the examination of the applicants ’ Convention grievances in the present case, the Court considers it necessary to present the procedure hitherto adopted in applications concerning non ‑ enforcement or delayed enforcement of domestic court decisions in Ukraine.
10. Prior to the adoption of the Ivanov pilot judgment the Court had dealt with a number of cases concerning the non-enforcement of domestic court decisions in Ukraine. The first decision on this issue was rendered in the case of Kaysin and Others v. Ukraine ((friendly settlement), no. 46144/99, 3 May 2001). Even though the case was settled by the parties and the applicants received the sums indicated in the friendly settlement agreement, the general issue of non ‑ enforcement remained unresolved largely owing to the lack of funds of the State entities, State-owned or State ‑ controlled debtors (hereinafter “State debtors”). Subsequent cases concerning non ‑ enforcement or delayed enforcement of domestic court decisions related to payments of salaries and allowances to military servicemen, employees of the mining companies, judges, school teachers, debts of municipalities or State hospitals, State-owned banks, State-owned enterprises and the Cabinet of Ministers (see, among many other examples, the judgments in the cases of Voytenko v. Ukraine, no. 18966/02, 29 June 2004, Romashov v. Ukraine, no. 67534/01, 27 July 2004, Zubko and Others v. Ukraine, nos. 3955/04 and 3 others, ECHR 2006 ‑ VI (extracts), Belanova v. Ukraine, no. 1093/02, 29 November 2005, Kucherenko v. Ukraine, no. 27347/02, 15 December 2005, Shmalko v. Ukraine, no. 60750/00, 20 July 2004, and Poltorachenko v. Ukraine, no. 77317/01, 18 January 2005).
2. The pilot judgment in the Ivanov case
11. As a result of an increasing number of applications concerning prolonged non-enforcement of domestic decisions in Ukraine, the Court decided to have recourse to the pilot judgment procedure and selected the case of Yuriy Nikolayevich Ivanov v. Ukraine (see paragraph 8 above) as representative of this problem. For the facts of this case reference is made to paragraphs 8-20 of the pilot judgment.
12. In its Interim Resolution of 6 March 2008, the Committee of Ministers had already recognised the existence of a structural problem (see Ivanov, cited above, § 38, see also paragraph 124 below).
13. In its pilot judgment of 15 October 2009 the Court found that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 because of the non-enforcement or delayed enforcement of final judicial decisions. The Court noted that the delays had been caused by a combination of factors, including the lack of budgetary funds, the bailiffs ’ omissions and shortcomings in the national legislation, as a result of which Mr Ivanov and other applicants in a similar situation were unable to have the judgments enforced (see Ivanov, cited above, §§ 83-84 ). All those factors had been within the control of the Ukrainian authorities, and thus Ukraine was fully responsible for such non-enforcement (ibid. § 85). The Court further found that there had been no remedy at national level satisfying the requirements of Article 13 of the Convention in respect of Mr Ivanov ’ s complaints about the non ‑ enforcement of the judgment in his favour (ibid. §§ 66-70).
14. Under Article 46, the Court held that the Ivanov case concerned two recurring problems: (a) the prolonged non-enforcement of final domestic decisions and (b) the lack of an effective domestic remedy to deal with it. These problems lay behind the violations of the Convention found by the Court since 2004 in over 300 cases concerning Ukraine. The Ivanov case demonstrated that these problems had remained without a solution despite the Court ’ s clear rulings urging Ukraine to take appropriate measures to resolve those issues (see Ivanov, cited above, §§ 73, 74 and 83).
15. In view of the fact that approximately 1,400 similar applications against Ukraine were pending before the Court at that time (ibid. § 86), the Court held in the relevant operative provisions of its judgment as follows:
4. ... that the [violations of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention found in the case] originated in a practice incompatible with the Convention which consists in the respondent State ’ s recurrent failure to comply in due time with domestic decisions for the enforcement of which it is responsible and in respect of which aggrieved parties have no effective domestic remedy;
5. ... that the respondent State must set up without delay, and at the latest within one year from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, an effective domestic remedy or combination of such remedies capable of securing adequate and sufficient redress for the non-enforcement or delayed enforcement of domestic decisions, in line with the Convention principles as established in the Court ’ s case-law;
6.. .. that the respondent State must grant such redress, within one year from the date on which the judgment becomes final, to all applicants whose applications pending before the Court were communicated to the Government under Rule 54 § 2 (b) of the Rules of Court before the delivery of the present judgment or will be communicated further to this judgment and concern arguable complaints relating solely to the prolonged non-enforcement of domestic decisions for which the State was responsible, including where complaints alleging a lack of effective remedies in respect of such non-enforcement are also raised;
7. ... that pending the adoption of the above measures, the Court will adjourn, for one year from the date on which the judgment becomes final, the proceedings in all cases in which the applicants raise arguable complaints relating solely to the prolonged non-enforcement of domestic decisions for which the State is responsible, including cases in which complaints alleging a lack of effective remedies in respect of such non-enforcement are also raised, without prejudice to the Court ’ s power at any moment to declare any such case inadmissible or to strike it out of its list following a friendly settlement between the parties or the resolution of the matter by other means in accordance with Articles 37 or 39 of the Convention;
In the event of the State ’ s failure to adopt general remedial measures, the Court stated that it “will have no choice but to resume the examination of all similar applications pending before it and to take them to judgment so as to ensure effective observance of the Convention” (ibid. § 100). The Court decided to adjourn proceedings in respect of all new applications lodged after delivery of the pilot judgment (ibid. § 97). As regards applications lodged prior to the delivery of the judgment, it decided that it would give notice of them to the Government and adjourn adversarial proceedings in them. Cases already communicated but undecided on the merits would likewise be adjourned for one year from the date on which the judgment had become final (ibid. § 98). Finally, as regards the application of Article 41 in the case, the Court held that the respondent State was to pay the applicant the outstanding debt under the domestic judgments and 174 euros (EUR) to cover inflation linked adjustments in respect of pecuniary damage and EUR 2,500 in respect of non-pecuniary damage (ibid. §§ 106 ‑ 10 7 and the eighth operative provision).
3. Communication of post- Ivanov follow-up cases and the Ukrainian Government ’ s extension requests
16. In a letter of 27 January 2010 the Court informed the Ukrainian Government of its intention to communicate under Rule 54 § 2 (b) of the Rules of Court all Ivanov -type cases pending before the Court on the date of delivery of the Ivanov pilot judgment of 15 October 2009 which became final on 15 January 2010 (see point of the 6 operative provision and paragraph 15 above).
17. On 11 February 2010 the President of the Fifth Section accordingly decided, under the aforementioned Rule, to communicate the cases concerned to the respondent Government for information and possible action and, at the same time, to adjourn them formally for a period of one year from the date on which the judgment had become final (i.e. until 15 January 2011).
18. By December 2010 the Government had submitted friendly settlement proposals and unilateral declarations in 372 cases. These cases were struck out of the Court ’ s list of cases under Article 37 § 1 (b) of the Convention, following the applicants ’ acceptance of friendly settlement proposals or the Court ’ s acceptance of the Government ’ s unilateral declarations.
19. On 10 December 2010 the Government requested a one-year extension of the time-limit fixed in the pilot judgment in order to settle pending cases and to adopt the required general measures at domestic level.
20. On 18 January 2011 the Court decided to grant the Government ’ s request in part and to extend the time limit until 15 July 2011.
21. On 13 July 2011 the Government requested a further extension of six months. They also submitted friendly settlement proposals and unilateral declarations in nearly 1,000 cases. The Court eventually decided to strike 347 of these cases out of its list of cases.
22. On 6 September 2011 the Government ’ s second request for an extension of the time-limit was refused. The Court considered that it fell to the Committee of Ministers to find the most appropriate and expedient means to bring about the necessary reforms in Ukraine as part of the process of supervising the execution of the pilot judgment. The question of further procedure in cases raising similar issues was adjourned and all such cases were put on hold.
4. Decision to resume examination of Ivanov -type cases
23. On 21 February 2012 the Court examined the situation in about 2,500 follow-up cases pending before it. While a number of cases had been struck out of its list following either a friendly settlement agreement or acceptance of a unilateral declaration, no settlement had been proposed in some 700 communicated cases. In the meantime, since 1 January 2011, approximately 1,000 further similar applications had been lodged with the Court.
24. Referring to its warning in the pilot judgment (see Ivanov, § 100 and paragraph 15 above) that in the event of a failure to adopt the necessary general remedial measures at national level it would have no choice but to take pending applications to judgment, the Court decided to resume its examination of follow-up applications. It further expressed the hope that the Ukrainian authorities would continue cooperating with the Committee of Ministers in order to implement the pilot judgment without delay and with due regard to the relevant recommendations, resolutions and decisions of that body.
25. On 5 June 2012, the Parliament of Ukraine adopted new legislation, namely “the Act on State Guarantees concerning execution of judicial decisions with amendments” ( Закон України “Про гарантії держави щодо виконання судових рішень ”; “the 2012 Act”). The 2012 Act, which was amended on two occasions, namely on 15 May 2013 and 19 September 2013, introduced a procedure whereby the debts due under the domestic court judgments were to be paid by the State Treasury of Ukraine. It required applicants to apply to the State Treasury for such payments (see also paragraphs 103-104 below).
26. Despite the introduction of a new remedy under the 2012 Act, as from the end of 2013 the influx of Ivanov type cases significantly increased.
27. On 3 February 2015 the Court gave notice to the Ukrainian Government of Filipov and 3 other applications (no. 35660/13), where the applicants complained that the remedy introduced by the 2012 Act was ineffective.
5. Adoption of the first grouped judgment and communication to the Government of Ivanov -type cases
28. In the meantime, on 3 July 2012, the Court had adopted its judgment in Kharuk and Others v. Ukraine, ([Committee] no. 703/05, 26 July 2012), whereby it found a violation of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of prolonged non ‑ enforcement of final judicial decisions in Ukraine in respect of a group of applicants for the first time. That judgment concerned 116 applications. Ruling under Article 41 of the Convention on just satisfaction, the Court awarded the applicants, in respect of pecuniary and non-pecuniary damage, EUR 1,500 for delays of up to three years and EUR 3,000 for delays exceeding three years.
29. In accordance with the Court ’ s decision to resume examination of pending cases (see paragraphs 23-24 above), follow-up applications were communicated to the Government in groups. The Government were invited to submit grouped unilateral declarations acknowledging the violations of the Convention and proposing just satisfaction for any pecuniary and non ‑ pecuniary damage in line with the awards in Kharuk and Others. They were informed that if they failed to submit such unilateral declarations, the cases would be processed by way of similar grouped judgments.
30. In 2013 the Court communicated 2,750 Ivanov -type applications to the Ukrainian Government and rendered judgments or decisions in 2,459 Ivanov ‑ type cases.
31. In sum, the majority of the Ivanov -type cases which had been lodged with the Court before 2013 had been processed by way of judgments or decisions.
6. Decision to award a single fixed-rate sum in respect of pecuniary and non ‑ pecuniary damage
32. As from 20 June 2013 the Court adopted a policy in Ivanov -type cases of awarding fixed-rate sums of EUR 2,000 for pecuniary and non ‑ pecuniary damage. As regards pecuniary damage, it also held that “the respondent State has an outstanding obligation to enforce the judgments which remain enforceable” (see, among other authorities, Pysarskyy and Others v. Ukraine [Committee], no. 20397/07 and 163 other applications, §§ 24-25 and the sixth operative provision, 20 June 2013).
7. Inadmissibility decision in the Velikoda case
33. On 3 June 2014 the Court declared inadmissible the application in Velikoda v. Ukraine (no. 43331/12). The applicant alleged a violation of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, on account of the fact that, following a final judgment in the applicant ’ s favour ordering the national authorities to pay a social benefit, legislation had entered into force drastically reducing the amounts of the social payments in question ( Ukrainian Cabinet of Ministers ’ Resolution no. 745).
34. The Court held, among other things, that the relevant legislative measures were not unreasonably disproportionate having been adopted as a result of economic policy considerations and the financial difficulties faced by the State.
35. Following the Velikoda leading decision, approximately 5,600 cases that had previously been classified as Ivanov -type were declared inadmissible.
8. Adoption of temporary measures
36. On 2 September 2014 the Court adjourned its examination of Ivanov -type cases for one year as a result of the sharp increase in the number of new applications lodged (in January 2014 approximately 6,000 such applications were pending and by September the number had increased to 8,200). The Court decided to reconsider the situation within a period of six months.
37. On 20 January 2015 the Court revisited its decision of 2 September 2014 to adjourn the Ivanov -type cases, and decided to resume its examination of these applications. In January 2015 the Court communicated a group of 5,000 such cases to the Ukrainian Government (see Samoylenko and 4,999 Others, nos. 11212/08 - 2803/15).
38. In view of the large number of communicated cases, the Government asked the Court to allow them to submit observations in groups of 250 cases or a maximum of 500 cases per month starting from 23 May 2015.
39. On 14 April 2015 the Court allowed the Government to submit observations in 250 cases per month, starting from 23 May 2015.
40. Between 22 May 2015 and 26 February 2016 the Government submitted unilateral declarations proposing to pay applicants EUR 1,000 for non-pecuniary damage, together with an undertaking to enforce the domestic judgments, in 2,234 cases which had been communicated in January 2015 as part of the Samoylenko and 4,999 others group.
41. On 16 June 2015 the Court examined the terms of the unilateral declarations submitted by the Government on 22 May 2015 in a group of 340 applications and decided that the above amount was sufficient taken together with the Government ’ s undertaking. Subsequent to this decision, 2,041 applications were struck out of the Court ’ s list of cases.
Following the Chamber ’ s relinquishment of jurisdiction in favour of the Grand Chamber in the present applications (see paragraph 5 above), the Government were informed that the Court would not deliver further judgments in the Ivanov -type cases pending the outcome of the proceedings before the Grand Chamber. Consequently, the Government ceased submitting unilateral declarations.
42. The Court has received letters from some applicants complaining that the Government had failed to honour their undertakings in the unilateral declarations on the basis of which the Court had struck the applications in question out of its list of cases. Moreover, in a significant number of cases which the Court had disposed of by means of a judgment, the applicants wrote back complaining that the Government had failed to enforce those judgments. Such complaints were transmitted to the Department for the Execution of Judgments (the Council of Europe ’ s Directorate General of Human Rights and Rule of Law) for action.
43. According to the statistical information in the Court ’ s possession on the date of delivery of the present judgment, there are 12, 143 Ivanov -type cases pending before the Court, 7,641 of which have already been communicated to the Government. The available data shows that since 3 July 2012, when the Court introduced the fast-track procedure for grouped judgments and decisions, the Court has examined and disposed of 14,43 0 Ivanov -type cases, in particular:
– Judgments were delivered in 3,491 cases;
– Inadmissibility decisions were given in 2 89 cases;
– Strike out decisions following friendly settlement were adopted in 1,103 cases;
– Strike out decisions following unilateral declarations were adopted in 1, 233 cases;
– Strike out decisions for other grounds were adopted in 40 cases;
– Inadmissibility decisions were rendered by Single Judge in 8,274 cases.
44. A total of about 29,000 Ivanov -type applications have been submitted to the Court since the first application in 1999.
Since the beginning of 2016 the Court has continued to receive a large number of such applications - over 200 per month.
45. The applicant lives in the village of Olenychi, Ovruch District, Zhytomyr Region, Ukraine. She resides and works in an area of radioactive contamination and is entitled under the national law to various special social welfare benefits for persons who suffered from the Chernobyl disaster.
46. In 2009 she instituted proceedings in the Ovruch Local Court of Zhytomyr Region (the Ovruch Court) against the Ovruch Labour and Social Welfare Department claiming arrears in social payments under the Chernobyl Victims ’ Status and Social Security Act.
47. On 24 June 2009 the Ovruch Court ruled partly in her favour. This judgment was not appealed against and became final on 6 July 2009. On the same day the Ovruch Court issued a writ of execution.
48. On 10 August 2009 the State Bailiffs Service of the Zhytomyr Regional Department of Justice instituted enforcement proceedings. Despite a number of actions undertaken by the bailiffs the judgment remains unenforced.
49. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant complained of the national authorities ’ failure to enforce the final judgment delivered in her case. She further complained under Article 13 of the Convention about the lack of effective remedies to speed up the enforcement of the above judgment.
50. The applicant, who lives in Zhytomyr, is a former Chernobyl relief worker. Since March 2010 he has a second degree disability related to this work.
51. In October 2010 the applicant instituted proceedings in the Bogunskyy District Court of Zhytomyr (the Bogunskyy Court) against the Bogunskyy District Department of the Pension Fund, seeking a higher pension.
52. On 20 June 2011 the Bogunskyy Court ruled in the applicant ’ s favour. The judgment was not appealed against and became final on 1 July 2011.
53. On 27 July 2011 the enforcement proceedings were initiated.
54. The final judgment remains unenforced.
55. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant complained of the State ’ s failure to enforce the final judgment delivered in his case.
56. The applicant, who lives in Kremenchuk, is a former Chernobyl relief worker. Since July 2009 he has a second degree disability related to this relief work.
57. On 16 August 2010 the Kryukivskyy District Court of Kremenchuk (the Kryukivskyy Court) ordered the Kryukivskyy Labour and Social Welfare Department to recalculate the amount owed in respect of his participation in the Chernobyl relief work and to pay the applicant a lump sum.
58. On 7 February 2011 the Poltava Regional Court of Appeal upheld the judgment of 16 August 2010. The judgment became final.
59. On 16 September 2011 the Poltava Bailiffs ’ Service terminated the enforcement proceedings in the applicant ’ s case. This decision was challenged by the applicant.
60. By decision of 15 March 2012 the Kryukivskyy Court ruled in his favour and ordered the Bailiffs ’ Service to resume the enforcement proceedings. This decision was confirmed on appeal on 25 April 2012.
61. On 19 July 2012 the Poltava Bailiffs ’ Service once again terminated the enforcement proceedings. On 5 October 2012 they rejected the applicant ’ s request to renew them.
62. On 28 February 2013, on the applicant ’ s complaint, the Kryukivskyy Court quashed the bailiffs ’ decisions and ordered them to resume the enforcement proceedings
63. The final judgment of 16 August 2010 remains unenforced.
64. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant complained of the national authorities ’ failure to enforce the final judgment delivered in his case.
65. The applicant lives in Zhytomyr.
66. On an unknown date the applicant ’ s father instituted proceedings in the Zhytomyr Circuit Administrative Court (the Zhytomyr Court) against the Zhytomyr Labour and Social Welfare Department (the Labour Department), seeking recalculation of benefits and payment of a lump sum due to him. The applicant continued the proceedings after his father ’ s death on 21 November 2007.
67. On 24 January 2008 the Zhytomyr Circuit Administrative Court (the Zhytomyr Court) ordered the Zhytomyr Labour and Social Welfare Department (the Labour Department) to pay the applicant the outstanding debt owed to his late father. The judgment was not appealed against and became final on 4 February 2008.
68. The execution writ was issued by the Zhytomyr Court on 24 April 2008 and referred to the Zhytomyr Bailiffs ’ Service.
69. On several occasions the Bailiffs ’ Service returned the execution writ without enforcement for lack of funds on the part of the debtor department. The judgment of 24 January 2008 remains unenforced.
70. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant complained of the national authorities ’ failure to enforce the final judgment delivered in his case.
71. The applicant is a private joint-stock company, registered in Donetsk, Ukraine.
72. On 13 December 2007 the Dnipropetrovsk Regional Commercial Court (the Dnipropetrovsk Court) allowed the applicant company ’ s claim for restitution of precious metals against the State Enterprise “Prydniprovskyy Zavod Kolyorovykh Metaliv” (the State Enterprise). It also awarded the applicant costs and expenses. This judgment was not appealed against and became final on 25 December 2007. The same day the court issued a writ of execution.
73. On 30 January 2008 the Bagliyskyy Bailiffs ’ Service in Dniprodzerzhynsk started enforcement proceedings.
74. On 11 March 2008 the enforcement proceedings were transferred to the Dnipropetrovsk Bailiffs ’ Service.
75. On 4 April 2008, the Dnipropetrovsk Bailiffs ’ Service established that part of the metals had been returned by the debtor to the applicant company and the other part could not be found.
76. On 6 June 2008 the Ministry of Fuel and Energy of Ukraine ordered the liquidation of the State Enterprise. A liquidation commission was created. On 28 July 2008 the same Ministry issued another decree concerning liquidation of the State Enterprise.
77. On 5 September 2008 the Dnipropetrovsk Bailiffs ’ Service closed the enforcement proceedings in respect of the award for costs and expenses under the judgment of 13 December 2007.
78. Having been notified about the impossibility of finding the remainder of the metals to be restituted under the judgment of 13 December 2007, the applicant company requested the Dnipropetrovsk Court to vary the mode of execution of the judgment in that part and to award it the monetary equivalent of missing metals.
79. On 22 September 2008 the Dnipropetrovsk Court amended the procedure for enforcement of the judgment of 13 December 2007 and ordered the State Enterprise to pay the applicant company compensation.
80. On 27 October 2008 and 25 February 2009, that decision was upheld by the Dnipropetrovsk Commercial Court of Appeal and the Higher Commercial Court respectively.
81. On 9 April 2009 the Dnipropetrovsk Bailiffs ’ Service terminated the enforcement proceedings owing to the liquidation of the debtor.
82. Following the applicant company ’ s complaint, on 21 September 2009 the Donetsk Circuit Administrative Court quashed the decisions of the Ministry of Fuel and Energy of 6 June and 28 July 2008 concerning the liquidation of the State Enterprise. This decision was overruled on appeal by the Donetsk Administrative Court of Appeal on 23 December 2009, but ultimately upheld by the Higher Administrative Court on 6 July 2010.
83. On 10 April 2010 the Dnipropetrovsk Regional Commercial Court initiated insolvency proceedings in respect of the State Enterprise on the applicant ’ s request. On 9 July 2013 the same court declared the State Enterprise insolvent and ordered its liquidation.
84. The judgment of 13 December 2007 as varied by the ruling of 22 September 2008 remains unenforced.
85. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant company complained of the national authorities ’ failure to enforce the final judgment delivered in its case. It further complained under Article 13 of the Convention about the lack of effective remedies to speed up the enforcement of the above judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of 26 June 1996, as amended on 2 June 2016
86. The last paragraph of Article 124 of the Constitution, in its original wording, provided that:
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
87. Following the amendments of 2 June 2016 this provision was repealed and replaced by a new Article 129(1) which provides as follows:
“Judicial decisions are adopted by the courts in the name of Ukraine. Judicial decisions are mandatory for execution.
The State ensures execution of the judicial decision in accordance with the procedures established by law.
The court shall control the execution of the judicial decision.”
88. Article 382 of the Code provides:
“1. Wilful failure 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 500 to 1,000 of the statutory non-taxable monthly income, or by deprivation of liberty for a term of up to three years.
2. The same actions committed by an official, shall be punishable by a fine [in the amount] of 750 to 1000 of 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.
3. 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.
4. 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. Act of 14 May 1992 on the restoration of a debtor ’ s solvency or declaration of bankruptcy, with amendments ( Закон України “Про відновлення платоспроможності боржника або визнання його банкрутом” )
89. Under section 19 of this Act, a commercial court is entitled to order a moratorium on debt recovery from a company which is the subject of insolvency proceedings. The moratorium implies a prohibition to execute judgments against such a company. The Act also provides that the company protected by moratorium shall be immune from any fines and other sanctions for non-fulfilment or improper fulfilment of its financial obligations during the moratorium.
D. Enforcement Proceedings Act of 21 April 1999, in force until 2 June 2016 ( Закон України “Про виконавче провадження” )
90. This Act determined the procedure for enforcement of decisions of courts and of other competent authorities and officials (“judgments”).
91. Under section 2 of the Act, the enforcement of judgments was entrusted to the State Bailiffs ’ Service which formed part of the Ministry of Justice. Other entities and officials could also carry out enforcement under the domestic law.
92. The Act conferred a wide range of powers on bailiffs in enforcement proceedings. In particular, they were entitled to seek and obtain from any person concerned information and documents that were necessary for the enforcement of decisions, to enter and inspect premises belonging to, or occupied by, debtors, to seize and sell debtors ’ property, to freeze debtors ’ bank accounts, and to impose fines on citizens and officials in cases envisaged by the law (sections 4-5 of the Act). The bailiffs ’ orders concerning the enforcement of judgments were binding on all entities, organisations, officials and ordinary citizens in the territory of Ukraine. Pursuant to sections 6 and 88 of the Act, the bailiffs were entitled to impose on persons failing to comply with their orders a fine amounting to ten to thirty times the statutory non-taxable monthly income. If the actions of the offenders fell within the ambit of the criminal law, the bailiffs were to request their prosecution.
93. Section 3 of the Act contained a list of documents on the basis of which bailiffs could proceed with forcible execution (“the enforcement documents”). It included, inter alia, writs of execution issued by courts, rulings and resolutions of courts in civil, commercial, administrative and criminal cases, judicial orders, and judgments of the European Court of Human Rights. In order to initiate enforcement proceedings, the person in whose favour the judgment had been delivered (“the creditor”) or a prosecutor who had represented a citizen or the State in the court proceedings were to submit to the bailiffs one of the documents specified in section 3 together with a request for its enforcement (section 18). The bailiffs had three days to determine whether the request was made in compliance with the law and, if so, to start the enforcement proceedings, which were normally to be completed within six months (sections 24-25).
94. Section 34 of the Act obliged the bailiffs to suspend the enforcement proceedings in specific situations. Such suspension was compulsory if, for instance, a commercial court had started insolvency proceedings against the debtor and imposed a ban on payments in respect of creditors ’ claims, or if the debtor was an enterprise included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises (see paragraph 97 below).
95. Under section 37, enforcement proceedings were to be discontinued in cases where, for example, the judgment had actually been enforced in full, the time allowed for a particular type of debt collection had expired, or the enforcement document had been transferred to the debtor ’ s liquidator following official recognition of the debtor ’ s insolvency. The bailiffs were to return the enforcement document to the creditor if, for instance, the debtor did not have property which could be seized with a view to enforcing the judgment and the measures adopted by the bailiffs in order to discover such property had proved to be unsuccessful.
96. Parties to enforcement proceedings or persons involved in them were entitled to challenge the bailiffs ’ actions or inactivity before their superiors or courts and to claim damages (sections 7, 85 and 86).
97. Under the transitional provisions of the Act, the application of sections 4 and 5 was suspended in respect of enterprises included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises.
E. Act of 29 November 2001 introducing a moratorium on the forced sale of property ( Закон України “Про введення мораторiю на примусову реалiзацiю майна” )
98. This Act is intended to protect State interests on the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. A moratorium on the enforcement of judgment debts was introduced until such time as the mechanism for the forced sale of the property of such undertakings had been improved. No time-limit was set.
F. Act of 23 June 2005 on measures to ensure the stable functioning of fuel and energy sector enterprises ( Закон України Про заходи, спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу )
99. This Act introduces a mechanism for payment and amortisation of companies ’ debts in respect of energy resources. It also introduced a special register of companies involved in debt payment and amortisation under its provisions. A company ’ s inclusion on that register has the effect of suspending any enforcement proceedings against the company and requiring the domestic courts to dismiss any request to initiate insolvency or liquidation proceedings against the company.
G. Act of 16 October 2006 on execution of judgments and application of case-law of the European Court of Human Rights
100. Section 1 provides a definition of terms used in this Act. It defines the decision of the Court as a final judgment in a case against Ukraine in which a violation was found, a final judgment on just satisfaction in a case against Ukraine, a judgment/decision on a friendly settlement in a case against Ukraine, a judgment/decision on approving a unilateral declaration in a case against Ukraine. Redress is defined as the amount of just satisfaction, established by judgment of the European Court of Human Rights under Article 41 of the Convention or an award indicated in a decision on approval of friendly settlement or unilateral declaration. Execution of a judgment/decision constitutes payment of redress and taking additional individual measures; and taking general measures. Part 5 of section 8 provides that grounds for termination of enforcement proceedings shall be confirmation of payment of the award and of execution of any other requirement indicated in the operative part of the Court ’ s judgment. Section 10 provides for additional (on top of payment of the redress as defined above) individual measures which include a restitutio in integrum to the maximum possible extent and other measures indicated in the judgment/decision.
H. Amendment Act of 14 June 2011 concerning the State Budget
101. This Act introduced the following changes to the State Budget Act of 2011:
“To establish that in 2011 the provisions of sections ...50, 54... of the Chernobyl Victims Act, Children of War Social Protection Act and Military Personnel Pensions Act ... are implemented in the amounts established by the Cabinet of Ministers of Ukraine in accordance with available financial resources in the Pension Fund Budget for 2011.”
102. On 6 July 2011, in its decision no. 745, the Cabinet of Ministers fixed the amounts concerned. This decision was in force between 23 July 2011 and 1 January 2012. On 23 November 2011 the Cabinet of Ministers adopted a further decision, no. 1210, on the same matter.
I. Act of 5 June 2012 on state guarantees concerning execution of judicial decisions, with amendments ( Закон України “Про гарантії держави щодо виконання судових рішень” )
103. This Act entered in force on 1 January 2013. It imposes an obligation on State authorities (State Treasury) to enforce the judgments delivered by the national courts against State bodies and companies (section 2 of the Act).
104. Under section 3 § 4 of the Act, the decisions of domestic courts must be enforced within three months from the date on which the applicant submits all the necessary documents to the State Treasury. The Act further provides that when a decision remains unenforced for more than three months, the State is obliged to compensate the person by paying 3% per annum of the outstanding debt per year.
J. Enforcement Proceedings Act of 2 June 2016 ( Закон України “Про виконавче провадження” )
105. In comparison with its previous version, the Act introduces a mixed system for enforcement by State Bailiffs and by private debt collectors. Even though private debt collectors cannot be involved in enforcement of domestic decisions where the State is the debtor, they are expected to take some of the burden off State Bailiffs, thus making it possible to reduce their overall time spent on enforcement. Furthermore, the Act envisages setting up a data processing system to exchange information on enforcement proceedings with a view to accelerating a search of the debtor ’ s property and monitoring the executors ’ activities.
106. Section 5 of the Act provides as follows:
“1. State Bailiffs and, to the extent allowed by law, private debt collectors are authorised to enforce the decisions.
2. Private debt collectors shall perform the enforcement of the decisions ... except for:
2) decisions under which the debtor is a State, governmental authorities, National Bank of Ukraine, self-governing authorities, their respective officials, State and municipal companies, institutions and organisations, in which the State holds at least 25% of the share capital, and/or which are financed from the State or local budget; ...”
K. Act of 2 June 2016 on authorities and persons responsible for enforcement of court decisions and decisions of other bodies ( Закон України “Про органи та осіб, які здійснюють примусове виконання судових рішень і рішень інших органів” )
107. Section 1 of the Act provides as follows:
“1. State Bailiffs and, to the extent allowed by the Enforcement Proceedings Act, private debt collectors are authorised to enforce the court decisions and decisions of other bodies (officials).”
III. RELEVANT COUNCIL OF EUROPE MATERIALS
A. Protocol No. 14 to the Convention
108. Protocol No. 14 to the Convention, adopted by the Committee of Ministers of the Council Europe at its 114 th session held on 12 May 2004, together with accompanying recommendations and resolutions (see paragraphs 110-112 below), constitutes a central part of the overall package of reform measures taken by the Contracting States in order to guarantee the long-term effectiveness of the Convention system (see also Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 190 ‑ 191, ECHR 2004 ‑ V ).
109. Paragraph 98 of the Explanatory Report to Protocol No. 14 refers to execution of the Court ’ s judgments in the following terms:
“Rapid and full execution of the Court ’ s judgments is vital. It is even more important in cases concerning structural problems, so as to ensure that the Court is not swamped with repetitive applications. For this reason, ever since the Rome ministerial conference of 3 and 4 November 2000 (Resolution I ), ... it has been considered essential to strengthen the means given in this context to the Committee of Ministers. The Parties to the Convention have a collective duty to preserve the Court ’ s authority – and thus the Convention system ’ s credibility and effectiveness – whenever the Committee of Ministers considers that one of the High Contracting Parties refuses, expressly or through its conduct, to comply with the Court ’ s final judgment in a case to which it is party.”
B. Recommendation Rec( 2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies, 12 May 2004
110. At its 114 th session on 12 May 2004 the Committee of Ministers, having considered the measures needed to guarantee the long-term effectiveness of the control system instituted by the Convention, issued the following declaration:
“ Recalling the subsidiary character of the supervision mechanism set up by the Convention, which implies, in accordance with its Article 1, that the rights and freedoms guaranteed by the Convention be protected in the first place at national level and applied by national authorities;
Welcoming in this context that the Convention has now become an integral part of the domestic legal order of all states parties;
Emphasising that, as required by Article 13 of the Convention, member states undertake to ensure that any individual who has an arguable complaint concerning the violation of his rights and freedoms as set forth in the Convention has an effective remedy before a national authority;
Recalling that in addition to the obligation of ascertaining the existence of such effective remedies in the light of the case-law of the European Court of Human Rights (hereinafter referred to as the Court), states have the general obligation to solve the problems underlying violations found;
Emphasising that it is for member states to ensure that domestic remedies are effective in law and in practice, and that they can result in a decision on the merits of a complaint and adequate redress for any violation found;
Noting that the nature and the number of applications lodged with the Court and the judgments it delivers show that it is more than ever necessary for the member states to ascertain efficiently and regularly that such remedies do exist in all circumstances, in particular in cases of unreasonable length of judicial proceedings;
Considering that the availability of effective domestic remedies for all arguable claims of violation of the Convention should permit a reduction in the Court ’ s workload as a result, on the one hand, of the decreasing number of cases reaching it and, on the other hand, of the fact that the detailed treatment of the cases at national level would make their later examination by the Court easier;
Emphasising that the improvement of remedies at national level, particularly in respect of repetitive cases, should also contribute to reducing the workload of the Court;
Recommends that member states, taking into account the examples of good practice appearing in the appendix:
I. ascertain, through constant review, in the light of case-law of the Court, that domestic remedies exist for anyone with an arguable complaint of a violation of the Convention, and that these remedies are effective, in that they can result in a decision on the merits of the complaint and adequate redress for any violation found;
II. 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;
111. In the Appendix to the above Recommendation, the Committee of Ministers noted:
3. 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.
C. Resolution Res( 2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem, 12 May 2004
112. At the same session of 12 May 2004 the Committee of Ministers adopted a resolution, stating as follows:
Recalling the subsidiary character of the supervision mechanism set up by the Convention, which implies, in accordance with its Article 1, that the rights and freedoms guaranteed by the Convention be protected in the first place at national level and applied by national authorities;
Recalling that, according to Article 46 of the Convention, the high contracting parties undertake to abide by the final judgment of the European Court of Human Rights (hereinafter referred to as “the Court”) in any case to which they are parties and that the final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution;
Emphasising the interest in helping the State concerned to identify the underlying problems and the necessary execution measures;
Considering that the execution of judgments would be facilitated if the existence of a systemic problem is already identified in the judgment of the Court;
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.
D. The Committee of Ministers ’ procedures for supervision of execution of the Court ’ s judgments
113. The exercise of the powers of the Committee of Ministers under Article 46 §§ 2-5 of the Convention is governed by its Rules for the supervision of the execution of judgments and of the terms of friendly settlements (“the CM Rules”), adopted on 10 May 2006 at the 964 th meeting of the Ministers ’ Deputies.
114. In accordance with the CM Rules, cases remain under the Committee of Ministers ’ supervision until individual and general measures required by the Court ’ s judgment have been taken. After having established that the High Contracting Party concerned has taken all the necessary measures to abide by the Court ’ s judgment the Committee of Ministers adopts a final Resolution, concluding that its functions under Article 46 § 2 have been exercised (Rule 17). In the course of its supervision of the execution of judgment, the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of the execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution (Rule 16).
115. Rule 6 of the CM Rules reads as follows:
“1. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention.
2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine:
a. whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and
b. if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether:
i. individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;
ii. general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.”
116. The Committee of Ministers gives priority to supervision of the execution of judgments in which the Court has identified what it considers a systemic problem in accordance with Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem (see paragraph 112 above).
117. Rule 4 of the CM Rules reads as follows:
“1. The Committee of Ministers shall give priority to supervision of the execution of judgments in which the Court has identified what it considers a systemic problem in accordance with Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem.
2. The priority given to cases under the first paragraph of this Rule shall not be to the detriment of the priority to be given to other important cases, notably cases where the violation established has caused grave consequences for the injured party.”
118. A new “twin-track” procedure was introduced in January 2011. In particular, it establishes supervision system with two procedures: a standard and simplified procedure as the norm, and an enhanced procedure for certain cases. The indicators for the classification of cases under the enhanced supervision procedure are the following:
– judgments requiring urgent individual measures;
– judgments disclosing major structural and/or complex problems as identified by the Court and/or the CM;
E. Interlaken, Izmir, Brighton and Brussels High-Level Conferences on the Future of the Court
119. In view of the increasing number of applications submitted to the Court and the growing backlog of cases, the Contracting States held four high-level conferences to ensure the long-term effectiveness of the human rights protection system under the Convention and to provide the Court with the tools that it needed to carry out its mission. Following each conference, the States parties to the Convention issued a declaration which, in so far as relevant, read as set out below.
1. The Interlaken Conference and Declaration
120. At the High-Level Conference held in Interlaken, in Switzerland, on 18 and 19 February 2010, the Contracting States declared:
6. Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;
7. Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;
8. Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;
(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;
(3) Stresses that this principle implied a shared responsibility between the States Parties and the Court;
(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;
Under the Action Plan (point 4. b)), the Conference called upon the States Parties to commit themselves to:
“... fully executing the Court ’ s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
2. The Izmir Conference and Declaration
121. At the High-Level Conference held in Izmir, in Turkey, on 26 and 27 April 2011, the Contracting States declared as follows:
“1. Recalling the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and to the control mechanism it established;
2. Expressing its determination to ensure the effectiveness of this mechanism in the short, medium and long terms;
5. Recalling that the subsidiary character of the Convention mechanism constitutes a fundamental and transversal principle which both the Court and the States Parties must take into account;
6. Recalling also the shared responsibility of both the Court and the States Parties in guaranteeing the viability of the Convention mechanism;
7. Noting with concern the continuing increase in the number of applications brought before the Court;
B. Implementation of the Convention at national level
1. Reiterates calls made in this respect in the Interlaken Declaration and more particularly invites the States Parties to:
a. Ensure that effective domestic remedies exist, be they of a specific nature or a general domestic remedy, providing for a decision on an alleged violation of the Convention and, where necessary, its redress;
b. Co -operate fully with the Committee of Ministers in the framework of the new methods of supervision of execution of judgments of the Court;
3. The Brighton Conference and Declaration
122. At the High-Level Conference held on 19 and 20 April 2012 in Brighton, United Kingdom, the Contracting States declared as follows:
“1. The States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms ( ‘ the Convention ’ ) reaffirm their deep and abiding commitment to the Convention, and to the fulfilment of their obligation under the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention.
3. The States Parties and the Court share responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity. The Convention was concluded on the basis, inter alia, of the sovereign equality of States. States Parties must respect the rights and freedoms guaranteed by the Convention, and must effectively resolve violations at the national level. The Court acts as a safeguard for violations that have not been remedied at the national level. Where the Court finds a violation, States Parties must abide by the final judgment of the Court.
4. The States Parties and the Court also share responsibility for ensuring the viability of the Convention mechanism. The States Parties are determined to work in partnership with the Court to achieve this, drawing also on the important work of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe as well as the Commissioner for Human Rights and the other institutions and bodies of the Council of Europe, and working in a spirit of co-operation with civil society and National Human Rights Institutions.
A. Implementation of the Convention at national level
7. The full implementation of the Convention at national level requires States Parties to take effective measures to prevent violations. All laws and policies should be formulated, and all State officials should discharge their responsibilities, in a way that gives full effect to the Convention. States Parties must also provide means by which remedies may be sought for alleged violations of the Convention. National courts and tribunals should take into account the Convention and the case law of the Court. Collectively, these measures should reduce the number of violations of the Convention. They would also reduce the number of well-founded applications presented to the Court, thereby helping to ease its workload.
8. The Council of Europe plays a crucial role in assisting and encouraging national implementation of the Convention, as part of its wider work in the field of human rights, democracy and the rule of law. The provision of technical assistance upon request to States Parties, whether provided by the Council of Europe or bilaterally by other States Parties, disseminates good practice and raises the standards of human rights observance in Europe. The support given by the Council of Europe should be provided in an efficient manner with reference to defined outcomes, in co-ordination with the wider work of the organisation.
a ) Affirms the strong commitment of the States Parties to fulfil their primary responsibility to implement the Convention at national level;
b) Strongly encourages the States Parties to continue to take full account of the recommendations of the Committee of Ministers on the implementation of the Convention at national level in their development of legislation, policies and practices to give effect to the Convention;
B. Interaction between the Court and national authorities
10. The States Parties to the Convention are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, and to provide an effective remedy before a national authority for everyone whose rights and freedoms are violated. The Court authoritatively interprets the Convention. It also acts as a safeguard for individuals whose rights and freedoms are not secured at the national level.
16. The number of applications made each year to the Court has doubled since 2004. Very large numbers of applications are now pending before all of the Court ’ s primary judicial formations. Many applicants, including those with a potentially well ‑ founded application, have to wait for years for a response.
18. Repetitive applications mostly arise from systemic or structural issues at the national level. It is the responsibility of a State Party, under the supervision of the Committee of Ministers, to ensure that such issues and resulting violations are resolved as part of the effective execution of judgments of the Court.
19. The increasing number of cases pending before the Chambers of the Court is also a matter of serious concern. The Court should be able to focus its attention on potentially well-founded new violations.
a) Welcomes the advances already made by the Court in its processing of applications, particularly the adoption of:
i. Its priority policy, which has helped it focus on the most important and serious cases; and
ii. Working methods that streamline procedures particularly for the handling of inadmissible and repetitive cases, while maintaining appropriate judicial responsibility;
c) Expresses continued concern about the large number of repetitive applications pending before the Court; welcomes the continued use by the Court of proactive measures, particularly pilot judgments, to dispose of repetitive violations in an efficient manner; and encourages the States Parties, the Committee of Ministers and the Court to work together to find ways to resolve the large numbers of applications arising from systemic issues identified by the Court, considering the various ideas that have been put forward, including their legal, practical and financial implications, and taking into account the principle of equal treatment of all States Parties;
d) Building on the pilot judgment procedure, invites the Committee of Ministers to consider the advisability and modalities of a procedure by which the Court could register and determine a small number of representative applications from a group of applications that allege the same violation against the same respondent State Party, such determination being applicable to the whole group;
F. Execution of judgments of the Court
26. Each State Party has undertaken to abide by the final judgments of the Court in any case to which they are a party. Through its supervision, the Committee of Ministers ensures that proper effect is given to the judgments of the Court, including by the implementation of general measures to resolve wider systemic issues.
27. The Committee of Ministers must therefore effectively and fairly consider whether the measures taken by a State Party have resolved a violation. The Committee of Ministers should be able to take effective measures in respect of a State Party that fails to comply with its obligations under Article 46 of the Convention. The Committee of Ministers should pay particular attention to violations disclosing a systemic issue at national level, and should ensure that States Parties quickly and effectively implement pilot judgments.
G. Longer-term future of the Convention system and the Court
32. Effective implementation of the Convention at national level will permit the Court in the longer term to take on a more focused and targeted role. The Convention system must support States in fulfilling their primary responsibility to implement the Convention at national level.
33. In response to more effective implementation at the national level, the Court should be in a position to focus its efforts on serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the Convention, and hence would need to remedy fewer violations itself and consequently deliver fewer judgments.”
4. The Brussels Conference and Declaration
123. The relevant sections of the Declaration adopted by the Contracting States at the end of the High-Level Conference in Brussels, Belgium, on 26 and 27 March 2015 read as follows:
“Reaffirms the deep and abiding commitment of the States Parties to the Convention ... and their strong attachment to the right of individual application to the European Court ... as a cornerstone of the system for protecting the rights and freedoms set forth in the Convention;
Reiterates the subsidiary nature of the supervisory mechanism established by the Convention and in particular the primary role played by national authorities, namely governments, courts and parliaments, and their margin of appreciation in guaranteeing and protecting human rights at national level, while involving National Human Rights Institutions and civil society where appropriate;
Underlines the importance of Article 46 of the Convention on the binding force of the Court ’ s judgments, which stipulates that the States Parties undertake to abide by the final judgments of the Court in any case to which they are parties;
Whilst noting the progress achieved by States Parties with regard to the execution of judgments, emphasises the importance of the full, effective and prompt execution of judgments and of a strong political commitment by the States Parties in this respect, thus strengthening the credibility of the Court and the Convention system in general;
Is convinced that further to the improvements already carried out, emphasis must now be placed on the current challenges, in particular the repetitive applications resulting from the non-execution of Court judgments, the time taken by the Court to consider and decide upon potentially well-founded cases, the growing number of judgments under supervision by the Committee of Ministers and the difficulties of States Parties in executing certain judgments due to the scale, nature or cost of the problems raised. To this end, additional measures are necessary in order to:
i. continue to enable the Court to reduce the backlog of well ‑ founded and repetitive cases and to rule on potentially well-founded new cases, particularly those concerning serious violations of human rights, within a reasonable time;
ii. ensure the full, effective and prompt execution of the judgments of the Court;
iii. guarantee full and effective supervision of execution of all judgments by the Committee of Ministers and develop, in co-operation with States Parties, bilateral dialogue and assistance by the Council of Europe in the execution process.
(1) Reaffirms the strong attachment of the States Parties to the Convention to the right of individual application;
(2) Reiterates the firm determination of the States Parties to fulfil their primary obligation to ensure that the rights and freedoms set forth in the Convention and its protocols are fully secured at national level, in accordance with the principle of subsidiarity;
(3) Invites each stakeholder to ensure that the necessary means are available to fulfil its role in the implementation of the Convention, in conformity with the Convention providing for shared responsibility between the States Parties, the Court and the Committee of Ministers;
(8) Stresses the need to find, both at the level of the Court and in the framework of the execution of judgments, effective solutions for dealing with repetitive cases;
(9) Encourages in this regard States Parties to give priority to alternative procedures to litigation such as friendly settlements and unilateral declarations;
(10) Recalling Article 46 of the Convention, stresses that full, effective and prompt execution by the States Parties of final judgments of the Court is essential;
(11) Reiterates the importance of the Committee of Ministers respecting the States Parties ’ freedom to choose the means of full and effective execution of the Court ’ s judgments;
(12) Calls for enhancing, at the level of both the Committee of Ministers and the States Parties, in accordance with the principle of subsidiarity, the effectiveness of the system of supervision of the execution of the Court ’ s judgments;
F. The Committee of Ministers ’ assessment of the execution of the Ivanov pilot judgment
124. On 6 March 2008 the Committee of Ministers considered, pursuant to Article 46 § 2 of the Convention, the measures adopted by the Government of Ukraine with a view to complying with the Court ’ s judgments concerning the issue of the prolonged non-enforcement of final domestic decisions. The Committee adopted an interim resolution (CM/ ResDH( 2008)1), the relevant provisions of which read as follows:
“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.
125. At its 1236 th meeting on 22-24 September 2015, the Committee of Ministers examined the status of execution of the Ivanov pilot judgment and affirmed the following:
“ General measures 33 : (a) Measures related to the introduction of a domestic remedy: Since the pilot judgment, the Committee has mainly concentrated on the issue of setting up domestic remedies: the law ‘ On State guarantees concerning enforcement of judicial decisions ’ was adopted by Parliament on 5 June 2012 and entered into force on 1 January 2013. It introduced a new specific procedure for the enforcement of domestic judicial decisions delivered against the State after its entry into force. On 19 September 2013, Parliament adopted amendments to this law, enlarging its applicability to ‘ old ’ judicial decisions (in force since 16 October 2013) (the ‘ remedy law ’ ). Under the remedy law the State shall guarantee the enforcement of domestic judicial decisions rendered against the State, a State entity or a company the property of which cannot be alienated according to the legislation in force. This guarantee entails, in particular, an automatic payment from the State treasury in case of default of the entity concerned. The guarantee shall be limited by the funds provided in the law on budget for each year (regarding both ‘ old ’ judicial decisions rendered before the date of entry into force of the remedy law – 1 January 2013 – and the new decisions rendered after this date).
At the last examination of the present group in June 2015, the Committee recalled that the problem of non-enforcement or delayed enforcement of domestic judicial decisions persisted in Ukraine for more than a decade, notwithstanding the guidance given by the Committee over the years, notably through its five interim resolutions [1], and the Court ’ s pilot judgment, while noting in this context that the Court continues to communicate repetitive applications to the Government. The Committee noted with concern that the remedy introduced in 2013 appears not to have solved the problem at issue. It further noted the information provided with respect to an envisaged alternative payment scheme (see below) and expressed its concern that this scheme, if not carefully designed, could run contrary to the authorities ’ efforts to introduce an effective remedy for the present cases. The Committee requested further information on the details of the scheme. Lastly, the Committee stressed that the envisaged scheme could not, in any case, be applied to the payment of the just satisfaction awarded by the Court, which should be done exclusively according to the terms set by the Court.
In response, in their most recent communication of 9 July 2015 [2] (DH ‑ DD( 2015)763), the Ukrainian authorities reiterated that the remedy law is ‘ one of the ways to guarantee the enforcement of national courts ’ judgments ’. They admitted, however, that the amounts allocated for this purpose are not sufficient to cover all the debt immediately. The authorities provided detailed figures of the amounts allocated in the State budget and actually paid under the remedy law.
In its communication of 26 May 2015 (DH-DD(2015)595), the NGO ‘ Ukrainian Helsinki Human Rights Union (UHHRU) ’ pointed out that the amount allocated in 2015 in the State budget for the purpose of repaying the debts under both the remedy law and the just satisfaction awarded by the Court – UAH 150,000,000 – represented only 1% of the total debt. It further contended that the real amount of the debt was much higher than the one indicated by the authorities.
(b) Alternative mechanism of enforcement of judicial decisions : It is recalled that in their action plan of April 2015 (see DH- DD( 2015)419), the Ukrainian authorities indicated that a new alternative mechanism of enforcement of judicial decisions was being developed. The essence of this mechanism consists in the transformation of debts under non-enforced judicial decisions, the enforcement of which is guaranteed by the State and the European Court ’ s judgments, accrued as of 1 January 2015 (totalling up to 7,544,562,370 UAH) into treasury bonds payable up to seven years. It is envisaged that only a small part of the debt would be paid in cash (up to 10%), within the limit of the funds provided to this end by the Law ‘ On the 2015 State Budget ’. A first evaluation of this mechanism is provided above under (a).
In their most updated action plan of 9 July 2015 ( DH- DD( 2015)763 ), the Ukrainian authorities did not provide more detailed information with respect to the envisaged scheme, indicating only that ‘ the work in this respect was ongoing ’.
In its communication of 26 May 2015 (DH- DD( 2015)595), the NGO ‘ Ukrainian Helsinki Human Rights Union (UHHRU) ’ indicated that, in its opinion, this mechanism ‘ has serious gaps ’. In particular, it pointed out that the anticipated 3% interest rate was too low, not covering even the rate of annual inflation. In addition, it indicated that the seven-year period for payment under the bonds was too long.
In his communication to the Committee of Ministers of 10 June 2015 ( DD( 2015)608) concerning repetitive cases, the Registrar of the European Court indicated that ‘ Ukraine represents the most serious problem with some 9,000 applications concerning one single problem namely non-enforcement of domestic judgments ’. The Registrar noted that a pilot judgment procedure ‘ has failed to produce the results expected at national level with the result that the Court has to deal with the remaining cases individually.
Individual measures: It is noted that the Ukrainian authorities provided certain information relating to the payment of just satisfaction, accrued default interest and the enforcement of domestic judicial decisions in several cases of the present group. However, this information has not been systematised and, consequently, it is not possible to determine what progress has been achieved as regards the payment of just satisfaction ordered by the European Court or the number of domestic judgments enforced. Given the particularly large number of judgments concerned, the Secretariat offered its assistance to the Ukrainian authorities so as to enable them to organise an inventory of all outstanding debts relating to individual measures, including the amount of debt under the unenforced domestic judicial decisions.
General measures: The communication of 9 July 2015 does not provide any new relevant information in response to the concerns expressed by the Committee of Ministers on the remedy and the envisaged debt restructuring scheme.
It is noted that the remedy law has failed to solve the problem of non-enforcement of domestic judicial decisions. The main immediate impediment to its effective implementation is the lack of sufficient budgetary allocations. This situation is a matter of grave concern, which requires resolute action from the Ukrainian authorities.
As regards the ‘ alternative bond payment scheme ’, the Ukrainian authorities have not provided any information in response to the concerns expressed during the last meeting of June 2015, in particular that the envisaged scheme could not be applied to the payment of the just satisfaction awarded by the Court, which should be done exclusively according to the terms and during the time-limits set. The Ukrainian authorities are expected to confirm that this is not so and also to provide further information on the developments concerning the alternative payment scheme, in particular its relation to the remedy scheme of 2013.
At this juncture, it appears of the utmost importance that the Ukrainian authorities draw up a roadmap showing how to tackle this long-standing problem. At the outset, it is necessary to ensure a complete inventory of the actual debt incurred thus far, including default interest where applicable.
Lastly, it is noted that, given the particular complexity of the problem at issue, the Ukrainian authorities might wish to explore all possibilities of assistance from the Council of Europe in order to design a meaningful strategy to solve it. ...”
33. See the Notes for the last DH meeting of June 2015 for full details about the measures taken together with the analysis thereof.
126. At its 1259 th meeting on 7-9 June 2016, the Committee of Ministers examined the state of execution of the Ivanov pilot judgment and stated the following:
Individual measures : During its last examination of the present group of cases in September 2015 (1236th meeting) (DH), the Committee invited the Ukrainian authorities to systemise the information provided with respect to the payment of just satisfaction together with a calculation of the still outstanding debt.
The Ukrainian authorities have not provided any information in response to the Committee ’ s above decision.
As the Committee has stressed on many occasions, the problem of non ‑ enforcement or delayed enforcement of domestic judicial decisions has persisted in Ukraine for more than a decade, notwithstanding the guidance given by the Committee over the years, notably through its five interim resolutions, and the Court ’ s pilot judgment. The Committee of Ministers has underlined in particular that non-enforcement of domestic court decisions represents an important danger, not least for the respect of the Rule of Law, frustrates citizens ’ confidence in the judicial system and questions the credibility of the State.
Despite several attempts made by the Ukrainian authorities, in particular the introduction of a remedy in 2013, the measures taken so far have not been successful in solving the problem. Consequently, the influx of applications lodged with the Court has continued to grow. Most recently, the Chamber of the Court to which similar cases had been allocated relinquished jurisdiction in favour of the Grand Chamber on 8 December 2015 and the cases are currently pending before the Grand Chamber.
On 8 April 2016, the Special Advisor of the Secretary General on Ukraine, Mr Christos Giakoumopoulos, addressed a letter to Minister of Justice of Ukraine, Mr Pavlo Petrenko, in which he conveyed the Committee of Ministers ’ concerns on account of the lack of progress in taking the necessary measures for the execution of these cases and proposed to organise a consultation meeting with the relevant authorities as well as with other interested international organisations, such as the International Monetary Fund and the World Bank with a view to identifying avenues to solve this problem ( DH-DD(2016)575 ). The Ukrainian authorities responded positively to this request. Consequently, a meeting took place on 12 May 2016 in Kyiv with the participation of the Vice-Ministers of Justice, Finance and Foreign Affairs of Ukraine, the Permanent Representative of Ukraine before the Council of Europe, the representatives of the Office of the Government Agent before the European Court and of the International Monetary Fund.
During the consultations, the Ukrainian authorities provided the following information:
As regards the cases pending before the European Court, the Ukrainian authorities indicated that they were in the process of taking steps to settle around 10,000 Ivanov ‑ type of cases. For this purpose, they were calculating the amount of debt arising out of the domestic unenforced judicial decisions in these cases. On the basis of this work, they intend to propose friendly settlements or unilateral declarations to the European Court for the totality of the pending cases.
As regards the domestic remedy (see the Notes for the 1230th and 1236th DH meeting), the authorities acknowledged that the legislation which introduced a domestic remedy in 2013 was only partially effective. At present, there were some 120,000 holders of unenforced judicial decisions waiting to receive compensation under the remedy law. The estimated amount of debt relating to the entirety of these decisions is around UAH 2.5 billion (around EUR 89 million according to the current exchange rate).
As regards the alternative bond payment scheme (the Notes for the 1230th and 1236th DH meeting), the authorities indicated that this scheme was not yet applicable. So far, no holders of unenforced judicial decisions applied to receive bonds. It is recalled that the total amount of debt associated with the judicial decisions that were supposed to be converted into bonds was around UAH 7.5 billion (around EUR 267 million according to the current exchange rate).
As regards the inventory of all existing debts, the authorities indicated that the inventory started in 2013 and has not yet been completed. They indicated that there was no unified register of judicial decisions in Ukraine, and, therefore, the exact number of such decisions was unknown.
The authorities also indicated that the amount of debt arising out of unenforced decisions is difficult to calculate since not all unenforced judicial decisions have been inventoried. In addition, certain judicial decisions concerning social rights provided for the recalculation of various allocations to be conducted by relevant State services.
The authorities reiterated that the root cause of the problem in these cases was the lack of sufficient budgetary funding for all social rights existing in Ukraine. This situation resulted from the lack of any serious impact evaluation relating to various social rights and privileges granted in Ukraine in the past.
It appeared from the above-mentioned consultations that the problem of non ‑ enforcement of domestic court decisions has reached a point warranting resolute measures. This problem can be viewed from two angles which are interconnected:
As regards the cases pending before the European Court, the settlement of all pending cases through friendly settlements or unilateral declarations would be an adequate response from the Ukrainian authorities. Such a settlement also flows from the obligation of Ukraine under the judgment of the European Court in the case of Ivanov. This solution would not only discharge the European Court from an important number of repetitive cases, but also would provide redress to those applicants who lodged applications before the European Court. The Ukrainian authorities are therefore expected to complete the work that they initiated for the settlement of the pending cases.
However, it should be noted that the settlement of cases pending before the Court would not provide a long-lasting solution to the problem because the European Court would still risk receiving new applications if the root cause of the problem is not addressed.
As regards the viable long-lasting solution to the problem, it emerged from the consultations that the domestic remedy introduced in 2013 cannot be considered to constitute an effective remedy because no adequate funding was made available for its implementation.
The alternative bond scheme elaborated last year does not appear capable of solving the problem either, since there is no sign that the authorities are currently issuing bonds for the enforcement of decisions. In any event, the conditions and the implementation of this bond scheme has not been clearly set out to the Committee of Ministers despite its invitation to Ukraine, made at 1230th and 1236th DH meetings (see the decisions adopted at these meetings).
As admitted by the Ukrainian authorities, lack of funds is the main reason why the measures adopted so far have remained futile. The Ukrainian authorities have so far not provided any information on the amount of debt that the Ukrainian State owes to the holders of domestic court decisions. The only rough estimation provided so far concerns the calculation made on the basis of the applications made within the framework of the remedy law and the possible application of the bond payment scheme (UAH 10 billion - around EUR 356 million according to the current exchange rate - including UAH 2.5 billion relating to the remedy law and UAH 7.5 billion relating to the bond scheme).
In these circumstances, the first step that needs to be taken is to calculate the amount of debt arising out of unenforced decisions in Ukraine. The second step would be to introduce a payment scheme under certain conditions or containing alternative solutions to ensure that unenforced decisions are enforced. The third step would be to make the necessary adjustments in the State budget so that sufficient funds are made available for the effective functioning of the above-mentioned payment scheme, as well as the introduction of necessary procedures to ensure that budgetary constraints are duly considered when passing legislation so as to prevent situations of non ‑ enforcement of domestic court decisions rendered against the State or State enterprises.”
127. At its 1265 th meeting on 20-21 September 2016, the Committee of Ministers stated the following in respect of the state of execution of the Ivanov pilot judgment:
“... It was noted during the Committee ’ s last examination of these cases in June 2016 that it appeared from the above-mentioned consultations that the problem of non-enforcement of domestic court decisions has reached a point warranting resolute measures. It was also noted that the measures proposed by the Ukrainian authorities to settle all pending cases before the European Court through friendly settlements or unilateral declarations would be an adequate response flowing from the obligation of Ukraine under the Ivanov pilot judgment. However, the settlement of cases would not provide a long-lasting solution to the problem because the European Court would still risk receiving new applications if the root cause of the problem is not addressed. On the basis of these considerations a three-step strategy was proposed to the Ukrainian authorities with the aim of finding a viable long term solution.
It is noted with profound regret that, despite clear indications given by the Committee at its June 2016 meeting, the Ukrainian authorities have not so far reacted to these indications. This is a matter of deep concern because this situation creates an important risk for the Convention system. It should be noted in this respect that the number of similar pending applications before the Court has now exceeded 10,000 and is increasing rapidly. It is therefore indispensable that the Ukrainian authorities react to the decision adopted by the Committee at its last DH meeting and take strong action without any further delay.
1. recalled that the problem of non-enforcement or delayed enforcement of domestic judicial decisions has persisted in Ukraine for more than a decade and that no tangible progress has been achieved so far;
2. expressed their profound regret that no action has been taken by the Ukrainian authorities in response to their decision adopted at the June 2016 DH meeting, in particular with a view to settling the pending similar applications before the European Court and adopting the three-step strategy aimed at finding a long-lasting solution to the problem of non-enforcement or delayed enforcement of domestic judicial decisions;
3. stressed that, in view of the increasing number of new applications brought before the European Court, the continuing inaction of the Ukrainian authorities would put an additional undue burden on the Convention system;
4. therefore, called upon the Ukrainian authorities to take resolute action without further delay;
5. decided to resume consideration of this group of cases at their DH meeting in March 2017 at the latest. ...”
128. At its 1288 th meeting on 7 June 2017 the Committee of Ministers adopted a new Interim Resolution in respect of the Ivanov -type group of cases and declared the following:
“Having regard to the pilot judgment of the European Court of Human Rights (“the Court”) of 15 October 2009 in the case of Yuriy Nikolayevich Ivanov against Ukraine and 418 cases in the Zhovner group transmitted to the Committee for supervision of their execution under Article 46 of the Convention;
Recalling that the problems revealed by the present cases, notably the non-enforcement or delayed enforcement of final domestic judicial decisions and the lack of an effective remedy in respect thereof, have been pending before the Committee since 2004;
Recalling further that for more than a decade the Committee has, in five interim resolutions and numerous decisions, called upon the authorities to adopt, as a matter of priority, the necessary measures in its domestic legal system and to take resolute action without further delay including to implement the following three-step strategy:
‑ calculation of the amount of debt arising from unenforced decisions;
‑ introduction of a payment scheme with certain conditions, or containing alternative solutions, to ensure the enforcement of still unenforced decisions;
- introduction of the necessary adjustments in the state budget so that sufficient funds are made available for the effective functioning of the above-mentioned payment scheme, as well as necessary procedures to ensure that budgetary constraints are duly considered when passing legislation to prevent situations of non-enforcement of domestic court decisions rendered against the State or state enterprises;
Recalling the constant position of the Committee, that the problems at the root of the violations found by the Court in these judgments are large-scale and complex in nature and that their resolution requires the implementation of comprehensive and complex measures at both central and local level;
Noting that some steps have been taken to initiate reflection on the implementation of the three-step strategy but that no concrete progress in this respect has so far been reported;
Noting further the lack of progress as regards a unified approach or global strategy for reaching settlements in the cases already pending before the European Court and preventing an influx of new applications being lodged before it;
RECALLING again that the dysfunction of the justice system, as a consequence of the non-enforcement or delayed enforcement of domestic judgments, represents an important danger for the respect of the rule of law, undermines people ’ s confidence in the judicial system and puts into question the credibility of the State;
NOTED that, in view of the increasing number of applications brought before the European Court, the lack of progress puts an additional undue burden on the Convention system;
EXPRESSED profound concern about the lack of concrete progress in the implementation of the pilot judgment after so many years;
CALLED UPON the authorities to provide comprehensive information relating to the payment of just satisfaction and, where applicable, the enforcement of domestic judicial decisions, and a clear time-frame for the submission of complete and up ‑ to ‑ date information in respect of individual measures;
STRONGLY URGED the authorities, at the highest political level, to hold to their commitment to resolve the problem of non-enforcement of domestic judicial decisions and to adopt, as a matter of priority, the general measures required fully to comply with the pilot judgment and aimed at finding a long-lasting solution to the problem of non-enforcement or delayed enforcement of domestic judicial decisions;
INVITED the authorities fully to co-operate with the Committee and the Secretariat with a view to achieving tangible progress in the implementation of the three-step strategy on the basis of a clear and realistic timetable and to establish a long-term viable solution for the non-enforcement or delayed enforcement of final judicial decisions;
DECIDED to resume consideration of this group of cases at their 1302 nd meeting (December 2017) (DH).”
129. In accordance with Rule 42 § 1 of the Rules of Court, and having regard to the fact that the present applications originated in the same systemic violation of the Convention as found in the Ivanov judgment (see paragraphs 11-15 above), the Court decides to join the applications.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
130. The applicants complained of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 as a result of non-enforcement or delayed enforcement of domestic court decisions given in their favour. The first and fifth applicants also complained of the lack of effective remedy in domestic law in breach of Article 13 of the Convention. In so far as relevant, these provisions read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...”
“Everyone whose rights and freedoms as set forth in this 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.”
“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.
131. The Government submitted that the problem of non-enforcement of domestic judgments, as identified by the Court ’ s pilot judgment in Ivanov, continued to exist owing to the size of the debt accumulated during previous years and the limited funding allocated for the purposes of full enforcement of outstanding judgments. In this connection, they acknowledged that it was not the Court ’ s task to review the numerous applications lodged against Ukraine comprising complaints about the non ‑ enforcement of domestic decisions. These applications did not raise any legal issues under the Convention and fell within the well-established case-law of the Court. It was therefore for the Government to resolve this problem and to provide an appropriate remedy at national level to address all similar complaints.
132. The Government maintained that the significant amount of just satisfaction awarded by the Court in non-enforcement cases, which often exceeded the amounts claimed by the applicants under the domestic judgments, could instead be allocated for the actual enforcement of the debt. Referring to the data published by the Main Department of Statistics in Kyiv, the Government pointed out that the average monthly retirement pension was around EUR 72 in 2015. Accordingly, even an amount of EUR 1,000 for just satisfaction in the Ivanov -type of non-enforcement cases would be excessive in view of the change in the currency exchange rate over the last two years.
133. As regards the general measures for execution of the Ivanov judgment, the Government averred that the national authorities were endeavouring to carry out various reforms to the system of execution of judicial decisions. The following measures have been taken with a view to implementing their obligations under the pilot judgment:
a) in 2015 two draft laws, one “on authorities and their agents which enforce judgments and decisions”, and the other “on enforcement proceedings”, were submitted to the Ukrainian Parliament ( Verkhovna Rada ) for consideration. These draft laws were based on the international standards in the relevant field and introduced a mixed system for the enforcement of domestic judgments by both State bailiffs and private enforcers. The aforementioned legislative amendments will alleviate the burden on State bailiffs by decreasing the volume of their tasks and reducing the time spent on the enforcement of domestic judgments. The draft laws envisage an effective system of electronic interaction between State authorities in order to expedite searches of the debtor ’ s property, as well as an effective system of control over the bailiffs ’ activities;
b) elaboration of regulatory legal acts on the implementation of the above draft laws (subordinate legislation);
c) work on creating a system of education and advanced training of State bailiffs and private enforcers in cooperation with the experts of the EU Project “Support to Justice Sector Reforms in Ukraine” and with the national experts in the relevant field.
134. The Government submitted that, until the full implementation of the aforementioned reforms and in order to alleviate the burden of the Court, they were willing to suggest alternative procedures to afford an adequate and sufficient redress for persons who found themselves in a situation similar to the one in the Ivanov group of cases. In this respect, the Government would be holding high-level meetings with various Ministries, the Representative of the Secretary General of the Council of Europe and other international institutions.
135. The Government concluded that they were well aware of the Court ’ s possible frustration caused by the absence of clear and coherent solutions to the problem in question. They therefore assured the Court of their commitment to resolving the situation at issue and to ensuring their compliance with the obligations arising from the Convention and Ukraine ’ s membership of the Council of Europe.
136. The applicants complained of non-enforcement or delayed enforcement of domestic court decisions given in their favour. They alleged a violation of their rights guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The first and fifth applicants raised a further complaint under Article 13 of the Convention as regards the lack of effective remedy in domestic law. The applicants all claimed that there were no grounds for distinguishing their cases from the Court ’ s findings in its Ivanov judgment. On the contrary, the circumstances of their cases demonstrated that the national dysfunction identified in the Ivanov judgment persisted to date.
137. The applicants contended that the Court ’ s practice of awarding fixed-rate amounts of EUR 2,000 to cover any pecuniary and non ‑ pecuniary damage as well as costs and expenses in the Ivanov -type of cases did not constitute adequate just satisfaction within the meaning of Article 41 of the Convention. They explained that there had been a dramatic increase in inflation during 2014 and 2015 – 24.9% and 43.3%, respectively - as a result of which they had suffered financial losses in respect of the debts under the domestic decisions which had remained unenforced during that time. While the domestic law allowed creditors to demand that a debt be indexed to an official inflation rate for the whole period of default and an additional 3% annual interest rate for any outstanding amount in private law relations, it did not provide any compensation measures for public-law relations with regard to non-enforcement of domestic decisions. In other words, the default interest rate for State debts was much lower than the rate applicable in civil and business relations. Thus, the applicants suggested that, when awarding compensation under Article 41, the Court should take into consideration the losses caused by high inflation in Ukraine during the period of non-enforcement of the domestic decisions.
138. The applicants asserted that the domestic law, in particular the Act of 5 June 2012 on State guarantees on enforcement of judgments, did not provide an effective remedy capable of securing adequate and sufficient redress for the non-enforcement or delayed enforcement of domestic decisions. Furthermore, the reason for the large number of repetitive applications submitted to the European Court was the climate of impunity enjoyed by the State officials who had violated the Convention.
139. Finally, in their memorial dated 28 April 2016 in response to the Government ’ s above submissions, the applicants asked the Court to continue its examination of their applications and not to leave them alone in a one ‑ sided fight with the Government. In their opinion, if the external pressure exerted by the Court in delivering judgments with just satisfaction ceased to exist, the Government would fail to resolve the problem and establish an appropriate remedy at national level.
140. The Court is satisfied that the applications are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that they are not inadmissible on any other grounds. They must therefore be declared admissible.
141. At the heart of the present applications lies the division of competence established by the Convention between, on the one hand, the Court, whose function is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto” (Article 19 of the Convention) and, on the other, the Committee of Ministers “which shall supervise [the] execution” of the final judgments of the Court (Article 46 of the Convention). The understanding of that division of responsibility has evolved in the light of the Court ’ s case ‑ law as it has developed with regard to changing circumstances, and notably the proliferation of structural and systemic violations of the Convention. The introduction of the pilot-judgment procedure by the Court in the Broniowski judgment ( Broniowski v. Poland (merits) [GC], no. 31443/96, cited above, §§ 190 ‑ 191, ECHR 2004 ‑ V ), designed to deal with the phenomenon of repetitive cases arising from such violations, and further developments in the application of that procedure, have added a new dimension to the Court ’ s and the Committee of Ministers ’ respective roles under the Convention (see also paragraphs 156-164 below).
142. In view of these developments, it has become necessary to clarify where the responsibilities lie in addressing issues arising out of a failure to execute a pilot judgment.
2. The applications before the Court and the Ivanov judgment
143. The present applications brought by four individuals and a private joint ‑ stock company form part of a group of 12, 143 similar applications currently pending before the Court (see paragraphs 8 and 43 above). These cases originated in the same systemic problem identified in the Ivanov pilot judgment (cited above, §§ 83-88), namely the series of dysfunctions in the Ukrainian legal system which hinder the enforcement of final judgments, thus entailing a systemic problem of non-enforcement or delayed enforcement of domestic court decisions, combined with the absence of effective domestic remedies in respect of such shortcomings (see Ivanov, §§ 83-84).
144. The Court cannot but reiterate its findings in the Ivanov pilot judgment (§§ 89 ‑ 93), where it held that the structural problems with which it was dealing were large-scale and complex in nature and that they required the implementation of comprehensive and complex measures, possibly of a legislative and administrative character, involving various domestic authorities. In that context, it also observed that the Committee of Ministers was better placed and equipped than the Court to monitor the measures to be adopted by Ukraine in that respect (see Ivanov, § 90).
145. While recognising that it fell to the Committee of Ministers to determine what would be the most appropriate way to tackle the problems and indicate any general measures to be taken by the respondent State, the Court nevertheless stressed that specific reforms in Ukraine ’ s legislation and administrative practice should be implemented without delay in order to bring them into line with the Court ’ s conclusions and to comply with the requirements of Article 46 of the Convention (see Ivanov, § 92). It therefore directed, in the operative provisions of the judgment, that “the respondent State must set up without delay, and at the latest within one year from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, an effective domestic remedy or combination of such remedies capable of securing adequate and sufficient redress for the non ‑ enforcement or delayed enforcement of domestic decisions, in line with the Convention principles as established in the Court ’ s case-law” (see the fifth operative provision of the Ivanov judgment quoted in paragraph 15 above).
146. However, despite the significant lapse of time since the delivery of the Ivanov pilot judgment on 15 October 2009, the Ukrainian Government have so far failed to implement the requisite general measures capable of addressing the root causes of the systemic problem identified by the Court and to provide an effective remedy securing redress to all victims at national level. As acknowledged on many occasions by the authorities themselves (see Ivanov, §§ 77 and 84) and recognised by the Committee of Ministers in the 2008 Interim Resolution, adopted before the Ivanov judgment (see paragraph 124 above), the problem of non-enforcement or delayed enforcement of judicial decisions at that time had already existed in Ukraine for more than a decade. It remains unresolved, notwithstanding the additional guidance given to the respondent State by the Committee of Ministers over the years by means of its six subsequent interim resolutions (see paragraphs 125-127 above).
147. In the meantime, since the introduction of the first applications in 1999 the Court has received some 29,000 Ivanov -type applications (see paragraphs 43 and 44 above), of which 14, 430 have been examined by various judicial formations of the Court. However, 12,143 of those applications, the majority of which were lodged in years 2013-2017, are still awaiting judicial examination, despite the fact that over the past several years the Court has had recourse to an accelerated, summary procedure by means of grouped judgments and decisions (see paragraphs 43 and 44 above). Some applicants allege non-enforcement of the domestic judgments which have already been the subject of the Court ’ s judgments.
3. The impact of the failure to implement the Ivanov pilot judgment
148. The continuing failure over many years by Ukraine to execute the Ivanov judgment has left unresolved the systemic problem of non ‑ enforcement of domestic judicial decisions, thereby generating large numbers of follow-up applications which raise issues that are identical in substance to those in the instant case.
149. The Ukrainian Government have conceded that they have failed to implement the general remedial measures of the kind indicated in the pilot judgment and have also acknowledged that the systemic problem identified in that judgment is in principle capable of affecting each and every holder of an unenforced domestic judgment in Ukraine (see paragraphs 130-134 above). According to data presented by the Government to the Committee of Ministers, the number of persons with unenforced judicial decisions stands at some 120,000 (see paragraph 126 above).
150. The above situation, with such a massive influx of applications, is liable to affect the Court ’ s ability to fulfil its mission under Article 19 in relation to other meritorious applications warranting examination. In that context, the Court finds it important to recall that on the date of delivery of this judgment, 72, 1 00 cases earmarked as meritorious are awaiting examination, of which over 2 7 ,000 concern non-repetitive Convention issues, including allegations of serious human rights violations.
151. The respondent State ’ s continued failure to take appropriate general measures, thus leaving the systemic problem unresolved, led the Court to adopt a practice of dealing with the Ivanov follow-up cases in an accelerated, simplified summary procedure for grouped judgments and strike-out decisions, essentially limited to a statement of a violation and award of just satisfaction. This allowed the applicants to obtain swiftly a decision affording them financial redress (see, for example, Rozhenko and Others v. Ukraine [Committee], no. 2644/04 and 23 other applications, 11 April 2013 and paragraphs 28-29 above).
152. However, that judicial policy of wholesale delivery of rulings has not had any meaningful impact on the overall systemic problem identified in Ivanov. Nor has it resulted in any apparent progress in the execution process (see paragraphs 43-44, 124-128 and 131 above). Furthermore, every year growing numbers of applicants, instead of receiving appropriate redress at domestic level, have applied to the Court in order to obtain financial relief under Article 41 of the Convention. As noted above (see paragraph 146 above), some new applications concern non-enforcement of domestic decisions which have already been the subject of the Court ’ s judgments finding a violation of the Convention.
153. On adoption of the Ivanov judgment at the end of September 2009 1,400 follow-up cases were pending before the Court (see Ivanov, cited above, § 86). At present, notwithstanding that the Court has already dealt with 14, 43 0 such cases, 12, 143 are pending (see Ivanov, cited above, § 86, and paragraphs 43-44 above).
154. The only conclusion that can be drawn from the present state of affairs is that if the Court examines the present cases and all the other follow up cases in the same or a similar manner, it will face the inevitable prospect that growing numbers of applicants in Ukraine will turn to it for redress in the future (see also paragraph 148 above). In reaching that conclusion, the Court also relies on the Committee of Ministers ’ assessment of the situation at its meeting on 20 and 21 September 2016, to the effect that the measures for settling all already pending cases through friendly settlements or unilateral declarations would not provide a lasting solution to the problem because the Court will still be at risk of receiving new applications as long as the root cause of the problem is not addressed (see paragraph 127 above).
155. The Court observes that it runs the risk of operating as part of the Ukrainian legal enforcement system and substituting itself for the Ukrainian authorities in directing “appropriate and sufficient redress for the non ‑ enforcement or delayed enforcement of domestic decisions”, as required under the fifth operative provision of the Ivanov judgment. That task is not compatible with the subsidiary role which the Court is supposed to play in relation to the High Contracting Parties under Article 1 (obligation to respect human rights) and Article 19 of the Convention, and runs directly counter to the logic of the pilot-judgment procedure developed by the Court.
156. The Court must therefore consider how this situation can best be addressed in a way which respects the rationale of the pilot-judgment procedure as conceived in the Broniowski judgment (cited above, § 193), in accordance with the principle of subsidiarity underpinning that rationale. In particular, it must examine whether it should act as a mechanism for awarding compensation in respect of the large numbers of repetitive applications which follow pilot or leading judgments whose execution is to be supervised by the Committee of Ministers pursuant to Article 46 § 2 of the Convention.
4. The object and purpose of the pilot judgment procedure
157. The Court has been dealing with mass litigation arising out of different structural or systemic problems in the Contracting States for nearly two decades. These human rights deficiencies in the Contracting States give rise to constantly growing numbers of applications to the Court and jeopardise the long-term effectiveness of the human rights protection system set up by the Convention (see paragraph 111 above, and also Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999 ‑ V; Di Mauro v. Italy [GC], no. 34256/96, § 23, ECHR 1999 ‑ V; and Kudła v. Poland [GC], no. 30210/96, § 148, ECHR 2000 ‑ XI).
158. The pilot-judgment procedure was conceived as a response to the growth in the Court ’ s caseload, caused by a series of cases deriving from the same structural or systemic dysfunction, and to ensure the long-term effectiveness of the Convention machinery (see paragraphs 108-112 and Broniowski (merits), cited above, §§ 190 and 191).
159. The dual purpose of that procedure is, on the one hand, to reduce the threat to the effective functioning of the Convention system and, on the other, to facilitate the most speedy and effective resolution of a dysfunction affecting the protection of Convention rights in the national legal order. By incorporating into the process of execution of the pilot judgment the interests of all other existing or potential victims of the systemic problem identified, the procedure aims to afford proper relief to all actual and potential victims of that dysfunction, as well as to the particular applicant(s) in the pilot case ( Broniowski (merits), cited above, § 193). The provision of such “adequate and sufficient redress”, to use the language of the fifth operative provision of the Ivanov judgment, is, according to the logic of the pilot-judgment procedure, a treaty obligation attaching to execution of the pilot judgment, the observance of which is to be supervised by the Committee of Ministers, with the Court ’ s role being essentially limited to its identification of a systemic problem and, if appropriate, indication of general remedial measures to be taken in execution. Thus, the effect of the pilot-judgment procedure is to place the granting of relief to victims in follow-up cases within the framework of execution proceedings (see Broniowski (merits), cited above, §§ 191, 193 and 194; Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, §§ 36 and 37, ECHR 2005 ‑ IX; Hutten ‑ Czapska v. Poland [GC], no. 35014/97, § 238, ECHR 2006 ‑ VIII; Kurić and Others v. Slovenia [GC], no. 26828/06, ECHR 2012 (extracts); Association of Real Property Owners in Łódź and Others v. Poland (dec.), no. 3485/02, § § 86 ‑ 87, ECHR 2011 (extracts); and Anastasov and Others v. Slovenia (dec.), no. 65020/13, §§ 94-96, 18 October 2016 ). Moreover, the Court does not have the capacity, nor is it appropriate to its function to adjudicate on large numbers of repetitive cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see, mutatis mutandis, Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and seven other applications, § 69, ECHR 2010, cited in Gerasimov and Others v. Russia, nos. 29920/05 and ten other applications, §§ 207 and 210, 1 July 2014).
160. It follows that the Court ’ s assessment of the situation complained of in a “pilot” case necessarily extends beyond the sole interests of the individual applicant and requires it to examine the case before it also from the perspective of the general measures that need to be taken in the interests of other already or potentially affected persons ( Hutten-Czapska, cited above, § 238; Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 73, 4 December 2007, Association of Real Property Owners in Łódź and Others, cited above, §§ 86-87; and Anastasov and Others, cited above, §§ 94-96).
161. According to the rationale of the pilot judgment, therefore, the respondent State is required to eliminate the source of the violation for the future and to provide a remedy for the past prejudice suffered not only by the individual applicant(s) in the pilot case but also by all other victims of the same type of violation. The intention is that, under the umbrella of the general measures required of the respondent State, all the other victims are absorbed into the process of execution of the pilot judgment.
(b) Examples of pilot judgments
162. Since the Broniowski judgment of 22 June 2004, the Court has delivered thirty-five final pilot judgments, whereby it directed the Contracting States to take general measures in the interest of all existing and potential victims in order to resolve various dysfunctions in national human rights protection identified by the Court as “systemic” or “structural” problems, notably:
– legislative dysfunctions or defective practices affecting property rights ( Hutten-Czapska, cited above; Suljagić v. Bosnia and Herzegovina, no. 27912/02, 3 November 2009; Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, 12 October 2010; and Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, ECHR 2014;
– excessive length of proceedings ( Lukenda v. Slovenia, no. 23032/02, ECHR 2005 X, Rumpf v. Germany, no. 46344/06, 2 September 2010; Vassilios Athanasiou and Others v. Greece, no. 50973/08, 21 December 2010; Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, 10 May 2011; Finger v. Bulgaria, no. 37346/05, 10 May 2011; Ümmühan Kaplan v. Turkey, no. 24240/07, 20 March 2012; Michelioudakis v. Greece, no. 54447/10, 3 April 2012, Glykantzi v. Greece, no. 40 150/09, 30 October 2012; Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, 7 July 2015; and Gazsó v. Hungary, no. 48322/12, 16 July 2015);
– inadequate conditions of detention ( Orchowski v. Poland, no. 17885/04 and Norbert Sikorski v. Poland, no. 17599/05, 22 October 2009; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012; Torreggiani and Others v. Italy, nos. 43517/09, and six other applications, 8 January 2013; Neshkov and Others v. Bulgaria, nos. 36925/10 and five other applications, 27 January 2015; Varga and Others v. Hungary, nos. 14097/12 and five other applications, 10 March 2015; and Rezmiveş and Others v. Romania, nos. 61467/12 and 3 others, 25 April 2017);
– non-enforcement of final domestic judgments and decisions ( Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009; Olaru and Others v. Moldova, nos. 476/07 and 3 others, 28 July 2009; Ivanov, cited above; Manushaqe Puto and Others v. Albania, nos. 604/07 and 3 Others, 31 July 2012; and Gerasimov and Others, cited above;
– other issues ( Xenides-Arestis v. Turkey, no. 46347/99, 22 December 2005; Kauczor v. Poland, no. 45219/06, 3 February 2009; Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010 (extracts); Kurić and Others, cited above; M.C. and Others v. Italy, no. 5376/11, 3 September 2013; and W.D. v. Belgium, no. 73548/13, 6 September 2016).
163. Most pilot judgments have been successfully implemented by means of general remedial measures introduced by the respondent States. Where such measures included a new legal remedy – compensatory or otherwise – capable of providing sufficient and adequate redress at domestic level, the Court declared the follow-up cases inadmissible for non ‑ exhaustion of domestic remedies and “repatriated” them to the States in question (see, for instance, Demopoulos and Others, cited above; Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, 23 September 2010; Łatak v. Poland (dec.), no. 52070/08, 12 October 2010; Müdür Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013; Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, 18 June 2013; Valcheva and Abrashev v. Bulgaria (dec.), nos. 6194/11 and 34887/11, 18 June 2013; Techniki Olympiaki A.E. v. Greece (dec.), no. 40547/10, 1 October 2013; Stella and 10 Other applications v. Italy (dec.), no. 49169/09, 16 September 2014; and Xynos v. Greece, no. 30226/09, 9 October 2014).
164. Where the States introduced amending legislation providing existing and potential victims of a systemic violation with relief at domestic level such that the Court ’ s further examination of similar applications was no longer justified, it struck those cases out of its list on the ground that the matter had been resolved, within the meaning of Article 37 § 1 (b) of the Convention, through the adoption of general measures, including compensatory remedies for redress with retrospective effect ( see Wolkenberg and Others, cited above, §§ 72-77; E.G. v. Poland and 175 Other Bug River applications v. Poland (dec.), no 50425/99, §§ 22 ‑ 25, ECHR 2008 (extracts); Association of Real Property Owners in Łódź and Others, cited above, §§ 82-89; and Anastasov and Others, cited above, §§ 89-102).
Three pilot-judgment procedures were formally closed by virtue of the Court ’ s decisions following the implementation of general measures (see E.G. v Poland and 175 Other Bug River applications, cited above, §§ 25-29, and the second operative provision of the decision; Association of Real Property Owners in Łódź and Others, cited above, § 90, and the third operative provision of the decision; and Anastasov and Others, cited above, § 103, and the second operative provision of the decision).
(c) Procedure for follow-up cases under the Court ’ s pilot-judgment procedure
165. As stated above (see paragraph 159 above), it is inherent in the pilot-judgment procedure that the Court examines the issues involved also from the perspective of the interests of other potentially affected persons. That assessment necessarily encompasses the procedure for similar cases – those currently pending and those liable to be lodged with the Court in the future (see, among other examples, Broniowski (merits), cited above, § 198; Burdov (no. 2), cited above, §§ 142-146; and Rutkowski and Others, cited above, §§ 223-229 ).
166. Since the Broniowski judgment it has been the Court ’ s consistent practice to include in pilot judgments, in addition to rulings in the pilot case, various procedural decisions concerning the future treatment of follow-up cases – those communicated to the respondent Government and new ones alike. For instance, the Court has often decided to adjourn similar cases pending the implementation of general measures by the respondent State (see, among other examples, Broniowski (merits), cited above, § 198; Hutten-Czapska, cited above, § 247; Kurić, cited above, § 415; Ivanov, cited above, §§ 97-99, and the seventh operative provision of the judgment; Olaru and Others, cited above, §§ 60-61, and the sixth operative provision of the judgment; Burdov (no. 2), cited above, § 146, and the eight operative provision of the judgment; Rutkowski and Others, cited above, §§ 227-229, and the tenth and eleventh operative provisions of the judgment; Gerasimov and Others, cited above, § 232, and the fourteenth operative provision of the judgment; and W.D. v Belgium, cited above, § 174, and the seventh operative provision of the judgment). It has discontinued its examination of similar applications already pending before it and suspended the treatment of any applications not yet registered at the date of delivery of the pilot judgment (see Greens and M.T ., cited above, §§ 121-122). It has also anticipated its rulings on the admissibility of pending and future cases, holding that, in certain circumstances, it “may declare [them] inadmissible in accordance with the Convention” (see Suljagić, cited above, § 65). Where appropriate, the Court has decided to communicate, by virtue of the pilot judgment, all similar applications lodged with it before the date of delivery of the judgment (see Rutkowski and Others, cited above, §§ 226-227, and the ninth operative provision of the judgment). That practice, embracing a range of solutions, reflects the rationale of the pilot-judgment procedure, according to which all cases deriving from the same systemic root cause are incorporated into its framework and absorbed into the execution process of the pilot judgment (see paragraphs 158-161 above).
5. The need to adopt a new approach in post- Ivanov cases
167. In the present case, the Court, considering the observations of the Committee of Ministers (see paragraphs 124-128 and 146 above), is confronted with the challenge to give new guidance after a pilot judgment which has so far clearly not succeeded in achieving its aims (see paragraphs 11 ‑ 15).
168. Since the first Ivanov -type applications were registered in 199 9, the Court has received some 29,000 similar cases. In 2012-2017 alone, it delivered nearly 6,000 post- Ivanov judicial decisions whereby, under grouped judgments or strike-out decisions, the applicants were granted amounts of between EUR 1,000 and EUR 3,000 and, subsequently, EUR 2,000 in respect of pecuniary and non-pecuniary damage in each and every case (see paragraphs 28, 32 and 43 above). The total sum of just satisfaction awards against Ukraine in that period – approximately EUR 12 million – constitutes an important part of the value of the claims under the as yet unenforced judgments which, according to the Ukrainian Government, totals EUR 89 million (see paragraphs 124 ‑ 128 above). Despite that, every month over 200 Ivanov follow-up applications are being registered by the Court (see paragraph 44 above).
169. Post- Ivanov cases currently account for almost one third of all the repetitive applications pending (see paragraph 8 above). The volume of cases has continued to grow despite the procedural and administrative measures taken to deal with those cases as speedily and efficiently as possible and despite the guidance repeatedly given to the respondent State by the Committee of Ministers (see paragraphs 23-44 and 124-128 above).
170. In exercising its function of supervision of the Court ’ s judgments, the Committee of Ministers has clearly acknowledged that the situation in Ivanov- type cases where general measures have not been implemented within a reasonable time creates a serious threat to the Convention system (see also paragraphs 127 and 128 above). In the instant case, the failure of the respondent State to implement the pilot judgment has for many years resulted in a constant and increasing inflow of applications where the Court ’ s only role has been to continually repeat its finding of a Convention violation made in the Ivanov judgment and award just satisfaction or accept the Government ’ s acknowledgment of a violation and their undertaking to pay financial compensation.
171. Under the practice so far adopted by the Court (see paragraphs 43 and 151 above) the ineffective execution of the Ivanov judgment continues – and will continue, unless a satisfactory solution is adopted in the procedure before the Committee Ministers – to give rise to repetitive findings of a violation of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 in respect of each and every unenforced judgment holder in Ukraine for the foreseeable future. According to the material in the Committee of Ministers ’ possession, there are 120,000 non ‑ executed judgment holders in Ukraine (see paragraph 126 above).
172. In the Court ’ s view, this situation in the Ivanov -type cases indicates that it needs to change its approach to the treatment of follow-up cases arising from the same systemic cause. The Court would again refer to the Committee of Ministers ’ assessment made in September 2016 that it is not the settlement of claims via non-contentious procedures before the Court but only a lasting solution to the root cause of the problem adopted in the execution process that can provide an adequate response to the present situation (see paragraph 127 above).
173. Even if that individual redress could be achieved by determining the merits and awarding just satisfaction for non ‑ pecuniary damage in the case under review (see paragraph 126 above), the Court considers that there is a strong general interest in espousing an approach which is capable, in the longer run, of preserving the respective roles under Articles 19 and 46 of the Convention of the Court, the respondent Government and the Committee of Ministers (see paragraphs 152-156 above).
174. Bearing in mind its efforts in examining Ivanov -type cases for over sixteen years (see paragraph 10 above), the Court concludes that nothing is to be gained, nor will justice be best served, by the repetition of its findings in a lengthy series of comparable cases, which would place a significant burden on its own resources, with a consequent impact on its considerable caseload. In particular, such an exercise would not contribute usefully or in any meaningful way to the strengthening of human rights protection under the Convention (see Greens and M.T., cited above, § 120; E.G. v. Poland and 175 Other Bug River applications, cited above, § 27; and Association of Real Property Owners in Łódź and Others and Others, cited above, § 44).
175. In the light of the foregoing considerations, the value for Convention purposes of the continued examination of Ivanov -type applications is clearly in issue. Accordingly the question arises as to whether it is justified to continue to examine the post- Ivanov applications, having regard to Articles 19 and 46 of the Convention and to the Court ’ s power under Article 37 § 1 (c) to strike an application out of its list when no such justification exists (see paragraph 200 below for the text of Article 37).
6. Whether it is justified to continue examination of Ivanov -type applications having regard to Articles 19 and 46 of the Convention
176. Article 19 of the Convention states:
“To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as ‘ the Court ’. It shall function on a permanent basis.”
177. The Court has previously held that there may be instances where, after it has identified a systemic problem in a pilot judgment, the respondent State delays the implementation of general measures beyond a reasonable time (see Broniowski (merits), cited above, § 198) and leaves the problem unresolved, thus generating repetitive Convention violations for an indefinite time. According to statements made in some previous cases, including Ivanov, in such circumstances the Court will have no choice but to examine and take to judgment the remaining applications pending before it in order to trigger the execution process before the Committee of Ministers and to ensure the observance of the Convention at domestic level (see E.G. v. Poland and 175 Other Bug River Applications, cited above, § 28; Ivanov, cited above, § 1 0 0; Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 136, ECHR 2014 ).
178. However, in some cases the Court has mentioned the possibility of a different approach, which it now considers to be more convincing in the light of the experience of the present case.
179. Referring to its role after the delivery of a pilot judgment in its decision in E.G. v. Poland and 175 Other Bug River Applications (cited above), whereby the pilot-judgment procedure applied in the case of Broniowski was closed, the Court recalled that its principal task under the Convention is, as defined by Article 19 of the Convention, “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. A requirement to deliver, continually, individual decisions in cases where there was no longer any live Convention issue could not be said to be compatible with this task. Nor did this judicial exercise contribute usefully or in any meaningful way to the strengthening of human rights protection under the Convention (ibid., §§ 27-28).
180. The Court did not rule out that in the future it might wish to redefine its role in this respect and decline to examine such cases (see E.G. v. Poland and 175 Other Bug River applications, cited above, § 27).
181. In that regard, the Court considers it important to recall that in the framework of the pilot-judgment procedure, one of the essential objectives of which is, as already reiterated above, to induce the respondent State to introduce a remedy for all victims of a systemic violation, the responsibility for affording reparation is necessarily shifted back to the domestic authorities. The Court ’ s principal task is defined by Article 19 of the Convention, the adjudication on awards under Article 41 being only accessory to this task. Consequently, and having regard to the purpose of the pilot-judgment procedure which, as stated above, is to assist States in resolving systemic problems at national level, thereby securing to persons concerned their Convention rights and freedoms as required by Article 1 of the Convention, the Court ’ s role under Article 19 cannot be converted into providing individualised financial relief in each and every repetitive case arising from the same systemic situation (see Wolkenberg and Others, cited above, § 76; Association of Real Property Owners in Łódź and Others, cited above, § 87; and Anastasov and Others, cited above, §§ 95-96 ).
182. In the Court ’ s view, given that its practice hitherto in Ivanov- type cases (see paragraphs 148-156 above) has been shown by experience to be incapable of achieving its intended purpose, the time has now come for it to redefine, as indicated in E.G. v. Poland and 175 Other Bug River applications (cited above, § 27), its role in circumstances where the respondent State has failed to take general remedial measures within a reasonable time and the consequences that should be drawn from this in the light of Article 46 of the Convention.
183. The relevant parts of Article 46 of the Convention provide as follows:
“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.
184. As stated above, since the delivery of the Ivanov judgment the Court, after adjournments of follow-up cases, has twice resumed examination of those cases. It has delivered some 6,000 enforceable judicial decisions either finding a violation of the Convention by means of a judgment and awarding just satisfaction, or accepting the Government ’ s acknowledgment of a violation and offer of payment of just satisfaction to the applicants (see paragraph 43 above). However, this repeated, continued delivery of judicial decisions has served little purpose and has failed to produce any satisfactory developments at the execution level. The execution process triggered by the series of Court rulings has remained ineffective, despite the fact that the Committee of Ministers has examined the matter under the enhanced procedure, a tool designed to address the most serious and systemic Convention violations (see paragraph 118 above).
185. Under the terms of Article 1 of the Convention, pursuant to the fundamental principle of subsidiarity underlying the Convention, the States Parties must “secure to everyone within their jurisdiction the rights and freedoms as defined in ... [the] Convention”. On the basis of that principle and their duty under Article 46 § 1 “to abide by the final judgments of the Court” the States Parties share collective responsibility for execution of the Court ’ s judgments, the supervisory role and responsibility in that respect being entrusted to the Committee of Ministers by virtue of Article 46 § 2 (see paragraphs 113-118 above).
186. The Court would reiterate in that connection that the Contracting States have on many occasions expressed their deep concern about the threat that repetitive cases pose for the credibility and effectiveness of the Convention system. They have constantly emphasised that the effective execution of the Court ’ s judgments is crucial in securing the long-term effectiveness of the Convention ’ s supervisory bodies (see paragraphs 109 ‑ 111 above).
187. In this context, when adopting Protocol No. 14 to the Convention as the central part of the whole package of reform measures taken by the Contracting States in order to guarantee the long-term effectiveness of the Convention system (see also Broniowski (merits) §§ 190-191), the Committee of Ministers pointed out that the prompt and full execution of the Court ’ s judgments was vital so as to ensure that the Court was not swamped with repetitive applications. It further underlined that the Contracting States had a collective duty to assist the Committee whenever a Contracting State refuses, explicitly or through its conduct, to comply with the Court ’ s final judgment in a case to which it is party (see paragraphs 108 ‑ 109 above).
188. The States Parties have therefore recognised the paramount importance of execution of the Court ’ s judgments in the context of repetitive cases for the effective operation of the Convention machinery and committed themselves collectively to ensuring that the Court ’ s judgments disclosing systemic defects are fully implemented. This is confirmed by the declarations adopted at a series of high-level conferences on the future of the Court (see paragraphs 119-123 above).
189. The Interlaken Declaration called upon the States Parties to commit themselves “to fully executing the Court ’ s judgments, ensuring that the necessary measures are taken to prevent further similar violations.” (see paragraph 120 above).
190. The Izmir Declaration invited the States “to cooperate fully with the Committee of Ministers in the framework of the new methods of supervision of execution of judgments of the Court” (see paragraph 121 above).
191. In the Brighton Declaration the States stressed that “repetitive applications mostly arise from systemic or structural issues at the national level. It is the responsibility of a State Party, under the supervision of the Committee of Ministers, to ensure that such issues and resulting violations are resolved as part of the effective execution of the judgments of the Court”. They also expressed their “continued concern about the large number of repetitive applications pending before the Court”, welcoming “the continued use by the Court of proactive measures, particularly pilot judgments, to dispose of repetitive applications” and encouraging “the States Parties, the Committee of Ministers and the Court to work together to find ways to resolve the large numbers of applications arising from systemic issues identified by the Court” (see paragraph 122 above).
192. In their most recent Declaration, adopted in Brussels on 26 ‑ 27 March 2015, the Contracting States reiterated the subsidiary nature of the supervisory mechanism established by the Convention, and in particular the primary role played by national authorities. They emphasised the importance of the full, effective and prompt execution of judgments and of a strong political commitment by the States Parties in this respect, thus strengthening the credibility of the Court and the Convention system in general. The Contracting States further noted that “emphasis must now be placed on the current challenges, in particular the repetitive applications resulting from the non-execution of Court judgments ... and the difficulties of States Parties in executing certain judgments due to the scale, nature or cost of the problems raised” (see paragraph 123 above).
193. As stated in the Brighton Declaration (see paragraph 3 of the Declaration quoted at paragraph 122 above), the Court shares with the Contracting States “responsibility for realising the effective implementation of the Convention, underpinned by the fundamental principle of subsidiarity”. However, the Court ’ s competence as defined by Article 19 of the Convention and its role under Article 46 of the Convention in the context of the pilot-judgment procedure do not extend to ensuring the implementation of its own judgments. Nor can the Court be converted into a body supervising execution of judgments.
194. The division of tasks between the Court and the Committee of Ministers is clear – the Court may assist the respondent State in fulfilling its obligations under Article 46 by seeking to indicate the type of measure that might be taken by the State in order to put an end to a systemic problem identified by the Court. However, it is for the Committee of Ministers to supervise the execution of the judgment and ensure that the State has discharged its legal obligation under Article 46, including the taking of such general remedial measures as may be required by the pilot judgment in relation to affording relief to all the other victims, existing or potential, of the systemic defect found (see Broniowski (merits), §§ 193-194). Thus, in the Broniowski case, the Court held that the respondent State should, through appropriate legal and administrative measures, secure the effective and expeditious realisation of the entitlement in question in respect of the remaining claimants at national level (see Broniowski (merits), § 194).
195. The situation faced by the Court in the Ivanov ‑ type cases in essence derives from an ineffective execution of the Court ’ s final judgment, requiring the adoption of general measures under the supervision of the Committee of Ministers in order to eliminate the root cause of a systemic problem continually generating numerous applications to the Court. The problems involved are fundamentally of a financial and political nature and, as shown by the developments following the Ivanov pilot judgment (see paragraphs 137, 142 and 168 above), their resolution lies outside the Court ’ s competence under the Convention, as defined by Article 19. They can be addressed adequately only between the respondent State, on the one hand, and the Committee of Ministers, on the other, the latter being empowered under Article 46 § 2 of the Convention to supervise the execution of the Court ’ s judgments.
196. It is therefore incumbent on the respondent State and the Committee of Ministers to assume their responsibilities under Article 46 and ensure that the Court ’ s Ivanov pilot judgment is fully implemented and that, in addition to the necessary general measures addressing the root cause of the problem, individual applicants are provided with appropriate relief at domestic level, including a scheme offering to them redress for the Convention violation identified by the Court that would serve the same function as an award under Article 41 of the Convention (see Broniowski (merits), cited above, § 193; also, mutatis mutandis, Association of Real Property Owners in Łódź and Others, cited above, § 88; and Anastasov and Others, cited above, § 98).
197. The legal issues under the Convention concerning prolonged non ‑ enforcement of domestic decisions in Ukraine were already resolved in the Ivanov pilot judgment. The Court thereby discharged its function under Article 19 of the Convention. In particular it identified the systemic shortcoming, it held there to be a violation of the Convention by reason of this shortcoming, and it gave guidance as to the general measures to be taken under Article 46 for the satisfactory execution of the pilot judgment so as to ensure relief and redress for all victims, past, present and future, of the systemic violation found. In accordance with the principle of subsidiarity, which underlies the whole Convention and not only the pilot judgment procedure, the matter treated by the Ivanov pilot judgment, including the provision of redress for victims of the systemic violation of the Convention found in Ivanov, is a question of execution under Article 46 of the Convention.
198. The present case and all similar 12, 143 cases pending before the Court, as well as any similar future cases to be submitted to it, are part and parcel of the process of execution of the pilot judgment. Their resolution, including individual measures of redress, must necessarily be encompassed by the general measures of execution to be put in place by the respondent State under the supervision of the Committee of Ministers. Consequently, all such cases fall to be dealt with under the execution process and should be notified to the Committee of Ministers in its capacity as the body which, under the Convention system, has the responsibility to oversee redress and justice for all the victims affected by the systemic problem found in a pilot judgment (see Broniowski (merits), cited above, § 193 and Ivanov, cited above, §§ 94-95), including the applicants whose names are mentioned in the appended lists.
199. Having regard to the respective competences of the Court and the Committee of Ministers under Articles 19 and 46 of the Convention, the Court is forced to conclude that no useful purpose is served in terms of the Convention ’ s aims in its continuing to deal with these cases in accordance with the practice hitherto followed. That being said the Court must now consider whether in these circumstances it may and should exercise its power under Article 37 § 1 (c) to strike the applications out of its list.
7. Application of Article 37 of the Convention
200. In so far as relevant this Article reads :
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
201. The pilot-judgment procedure is designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to all actual and potential victims of the systemic problem the Convention rights and freedoms as required by Article 1 of the Convention, offering to them more rapid redress and, at the same time, easing the burden on the Court which would otherwise have to take to judgment large numbers of applications similar in substance, at the expense of other meritorious cases (see, among many other authorities, Broniowski (friendly settlement), cited above, § 35; Hutten ‑ Czapska, cited above, §§ 231-234; Ivanov, cited above, § 95; and Wolkenberg and Others, cited above, § 34; see also paragraphs 156-162 above).
202. In the light of the foregoing considerations, most importantly the fact that the interests of the present applicants and all other existing and potential victims of the systemic problem in question are more appropriately protected in the execution process, the Court has found that the Convention aims are not best served by continuing to deal with post ‑ Ivanov cases. It therefore concludes that the continued examination of the case is not justified within the meaning of Article 37 § 1 (c). It remains to be determined whether “respect for human rights” requires it nonetheless to continue that examination.
203. In all such cases each and every current and future applicant is, to all intents and purposes, a “victim” within the meaning of Article 34 of the Convention, entitled to have the pilot judgment fully executed at domestic level in compliance with Article 46 § 1 and to obtain “adequate and sufficient redress”, as required under the fifth operative provision of the Ivanov judgment. Such redress should include enforcement of domestic judgments in their favour. In that context, the Court would reiterate that, as it has repeatedly held in numerous Ivanov- type cases, the Ukrainian State has an outstanding obligation to enforce domestic judgments which remain enforceable (see Pysarskyy and Others, cited above, § 25).
204. As stated above, the grievances raised in these applications must be resolved in the context of the general measures required by the execution of the Ivanov pilot judgment, including the provision of appropriate and sufficient redress for the Convention violations found in that judgment (see paragraphs 154, 201-203 above and the fifth operative provision of the Ivanov pilot judgment), which measures are subject to the supervision of the Committee of Ministers. Accordingly, and having regard to the different processes engaged to this end, the Court further concludes that respect for human rights within the meaning of Article 37 § 1 in fine does not require such continued examination of the applications in question from the point of view of individual redress.
205. Nor does it find that the case raises important issues more generally concerning the duties to be observed by the Contracting States in this field, other than those already clarified in the different phases of the pilot ‑ judgment procedure (see, a contrario, F.G. v. Sweden [GC], no. 43611/11, § 82, ECHR 2016). On the contrary, the overall interest of the proper and effective functioning of the Convention system militates in favour of the approach outlined above (see paragraphs 143-161 and 168-199 above).
206. In view of the foregoing, in accordance with Article 37 § 1 in fine the Court finds no circumstances regarding respect for human rights as provided for in the Convention and its Protocols which require the continued examination of the present case and other Ivanov type applications.
207. Finally, the Court recalls that this conclusion is without prejudice to its power to restore, pursuant to Article 37 § 2, the present, or any other similar application, to the list of cases if the circumstances justify such a course (see paragraph 223 below).
208. Accordingly, the Court decides to strike out the applications in question under Article 37 § 1 (c) of the Convention.
8. Procedure to be followed in similar applications
209. As in previous pilot judgments (see paragraphs 165 and 166 above above), the Court considers it appropriate to determine the procedure to be adopted in similar applications – those already pending and those to be lodged in the future.
210. The Court is faced with a serious problem of case overload which originates in structural or systemic situations in different contracting States (see paragraphs 148 et seq. above). This phenomenon carries the risk of preventing the Court from being able to focus on cases raising new and serious issues of Convention compliance in the States concerned and from dealing with such cases in good time. The pilot-judgment procedure, the essence of which is to transfer back to the domestic system responsibility for affording redress once the problem has been identified by the Court in a pilot judgment, was developed as a response to this threat.
As shown by the Court ’ s above-mentioned practice (see paragraphs 165 ‑ 166 above), one of the important features of that procedure is its flexibility, enabling the Court to adapt its decisions regarding follow-up cases to a variety of legal and factual situations in order to achieve the dual objectives of securing the most efficient procedural solution and ensuring that the respondent State satisfies its Convention obligations under Articles 1 and 46 § 1, notably as regards providing adequate relief for all the victims, existing and potential, of any systemic violation found (see Rutkowski and Others, cited above, § 226, with further references to Burdov and Broniowski (merits) ).
211. Under Article 31 of the Convention the Grand Chamber is competent in particular to determine applications submitted under Article 34 where a Chamber has relinquished jurisdiction under Article 30, as in the present case. Under Article 30 a chamber may relinquish jurisdiction when a case pending before it raises a serious question affecting the interpretation of the Convention. Article 43, which governs referral to the Grand Chamber, requires that, to be accepted for referral, a case must raise a serious question affecting the interpretation or application of the Convention or the Protocols thereto or a serious issue of general importance.
212. It may be inferred from these provisions that the role of the Grand Chamber is to address and resolve issues of general importance for the Convention system. In the context of a pilot judgment, this entails focusing not only on the individual case before the Court, but also on the general problem that gave rise to it. By definition pilot judgments determine the outcome of large numbers of cases in addition to the specific case pending before the Court and incorporate the interests of other actually or potentially affected persons (see paragraphs 157-165 above). This has been accepted and recognised by the Contracting States (see for example point 20 (c) of the Brighton Declaration welcoming the continued use of pilot judgments, paragraph 122 above). The legitimacy of the pilot-judgment procedure is thus not contested, and it is now enshrined in the Rules of Court (Rule 61), as requested by the Contracting States in the Interlaken Declaration, calling on the Court to “develop clear and predictable standards as regards selection of applications and the procedure to be followed and the treatment of adjourned cases” (see paragraph 120 above). Moreover, in the Brighton Declaration, the States envisaged the pilot-judgment procedure evolving towards “a procedure whereby the Court could register and determine a small number of representative applications from a group of applications that allege the same violation against the same respondent State Party, such determination being applicable to the whole group” (see paragraph 20 of the Declaration quoted at paragraph 122 above).
213. The question therefore arises whether, in the interests of the efficient administration of justice, in cases such as the present one which derive from a pilot-judgment procedure, the Grand Chamber can join, to the case of which it is seised under Article 30, other pending cases, that will, by virtue of the decision in the relinquished case, have the same outcome, or whether it is necessary for the Court to adopt a separate decision or judgment for the other applicants. It is clear that under Rule 42 § 1 a chamber would have this power and could exercise it at any stage of the proceedings before it has rendered its judgment. A fortiori, there appears to be no good reason why the Court ’ s highest judicial formation should not have the same power. This conclusion is reinforced by the principle set out in Rule 71 § 1 to the effect that “any provisions governing proceedings before the chambers shall apply, mutatis mutandis, to proceedings before the Grand Chamber”. This reflects the need to ensure coherence as between proceedings before the Court ’ s formations. In addition, where a chamber relinquishes jurisdiction in the context of a pilot-judgment procedure, it in effect relinquishes jurisdiction over the whole process, including the follow ‑ up cases.
214. Moreover, since the purpose of the pilot judgment is to place all victims of the systemic violation identified on an equal footing as regards obtaining redress through the execution process, it is both more fitting and more effective, also from the point of view of ensuring individual justice, to pursue that goal through a Grand Chamber judgment encompassing all the victims who have so far addressed their complaint to the Court. It is worth recalling, finally, in this context that under the terms of Article 32 of the Convention the Court ’ s jurisdiction “[extends] to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47” and that “in the event of dispute as to whether the Court has jurisdiction”, the decision is a matter for the Court (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 53, 17 September 2009).
215. As observed above, the resolution of the present applications and the 12, 143 pending applications – whether or not those applications have been communicated to the respondent State – is more properly part of the process of execution of the Ivanov pilot judgment and redress for the systemic problem found in the Ivanov judgment should be afforded to all victims, including all those who have already lodged applications with the Court, within the framework of the execution procedure, under the supervision of the Committee of Ministers (see also the fifth operative provision of the Ivanov judgment and paragraphs 195-196 and 203-204 above).
(b) Cases listed in the appendices to the present judgment
216. A list of post- Ivanov applications pending before the Court on the date of the delivery of the present judgment is set out in two appendices to this judgment. They comprise 12, 143 applications. Appendix I includes 7,641 applications of which notice has been given to the respondent Government in accordance with Rule 54 § 2(b) of the Rules of Court. Appendix II includes 4,502 applications of which notice has not yet been given to the respondent Government.
217. All these applicants in essence complain under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 of continued non ‑ enforcement or delayed enforcement of domestic judicial decisions.
(c) Decision adopted by the Court
218. Being mindful of the general threat to the proper functioning of the Convention system posed by the phenomenon of repetitive cases, as well as of the increasing emphasis on shared responsibility and the principle of subsidiarity (see paragraphs 119-123 above), the Court finds it appropriate to approach the repetitive Ivanov applications as follows.
(i) As regards pending applications
219. Having regard to the fact that all those applications originated in the same systemic problem as found in Ivanov and that they concern essentially the same issues of fact and law as the present case and to its conclusions above (see paragraphs 211-212 above), the Court considers that they should be joined to the present case, in accordance with Rule 42 § 1 of the Rules of Court read together with Rule 71 § 1.
220. Furthermore, for the reasons set out above (see paragraphs 200 ‑ 208 and 211-212 above), the Court finds that the 7,641 communicated applications listed in Appendix I and 4,502 new applications listed in Appendix II to this judgment should be struck out of its list of cases under Article 37 § 1 (c) of the Convention also.
(ii) As regards future similar applications
221. Considering that the same reasoning applies to any future well ‑ founded Ivanov ‑ type applications that may be lodged after the delivery of this judgment, the Court may strike them out of the list of its cases and transmit them directly to the Committee of Ministers, save those applications which are found to be inadmissible under Article 35 of the Convention.
222. Furthermore, bearing in mind the Committee of Ministers Resolution on judgments revealing an underlying systemic problem of 12 May 2004 (Res (2004)3; see paragraph 112 above), the Court will ensure that the Committee of Ministers and the Council of Europe ’ s institutions referred to in the Resolution are properly notified of any future similar cases and relevant developments concerning the Ivanov follow-up cases (see Greens and M.T., cited above, § 122). The Committee of Ministers and the respondent State will be provided with the Court ’ s judgments/decisions listing such applications, which should then be dealt with in the framework of the general measures of execution of the pilot judgment at national level, in such a way as to ensure appropriate relief for all applicants in those applications (see also the fifth operative provision of the Ivanov judgment).
223. As stated above (see paragraph 207 above), the decision to strike Ivanov follow-up applications out of the Court ’ s list of cases is without any prejudice to its power to restore to the list of cases, pursuant to Article 37 § 2, the applications listed in the appendices to the judgment, or any other similar future applications, if the circumstances justify such a course. The Court envisages that it may be appropriate to reassess the situation within two years of the delivery of the present judgment with a view to considering whether in the meantime there have occurred circumstances such as to justify its exercising this power.
1. Decides, by ten votes to seven, to join the five applications listed in paragraph 1 of the present judgment and the 12,143 applications listed in Appendices I and II to this judgment;