The Draft of the Law of Ukraine ’On the procedures of fulfilling decisions of the European court of human rights’
12.12.2001
(The draft was offered to the Supreme Rada by MP Sergey Golovaty on 15 March 1999. The law was adopted in the first reading on 13 July 1999)
This law regulates the legal relations that arise in the connection with the necessity to fulfil the decisions of the European court of human rights according to complaints of individuals, NGOs and groups of individuals about the abuse by Ukraine of their rights, stipulated by the Convention on the protection of human rights and basic freedoms, 1950.
I. GENERAL
Article 1. Decisions of the European court of human rights to be fulfilled .
Decisions of chambers of the European court of human rights and of the Grand chamber of the European court of human rights (European court decisions, in what follows) are compulsive for the fulfillment on the entire territory of Ukraine.
The procedure of the fulfillment of the European court decisions are determined by this Law, the Ukrainian Law ’On the fulfillment procedures’ and others legal acts, taking account of the peculiarities stipulated by this Law.
Article 2. The procedures of legalization and publication of the European court decisions.
The official translation to Ukraine and the proof of the authenticity of the translation of the European court decisions is provided by the permanent representation of Ukraine in the Council of Europe during one week from the date of issuing the decision.
Being legalized in the standard way the European court decision is immediately sent to the side concerned (plaintiff) and to the officer in charge of executing the Convention on the protection of human rights and basic freedoms (officer in charge of the Convention, in what follows).
The officer in charge of the Convention immediately sends the European court decision to the newspapers ’Golos Ukrainy’ and ’Uriadovy Kuryer’ that must publish the decision not later than a month from the moment of its issuing.
Article 3. The executive instrument of the fulfillment of the European court decisions .
The executive instrument of the fulfillment of the European court decisions is the European court decision legalized following the procedure stipulated in part 1 of Article 2 of this law.
II. THE PROCEDURE OF THE FULFILLMENT OF THE EUROPEAN COURT DECISIONS
Article 4. Handing the European court decisions for the fulfillment.
The side concerned (plaintiff) or its representative had the right, within the term determined by Article 84 of the Ukrainian law ’On the fulfillment procedures’, to turn to the officer in charge of the Convention with a written application about the fulfillment of the decision.
The application of the plaintiff (his representative) is, in the legal respect, not related to the fact of legalization of the European court decision.
Article 5. Actions of the officer in charge of the Convention concerning the fulfillment of the European court decision.
Within five days after the reception of the application about the fulfillment of the European court decision the officer in charge of the Convention turns to the Prime-Minister of Ukraine through the Minister of justice with the application about the fulfillment of the decision. The application must elucidate the following questions:
1) a brief summary of the case concerned;
2) the essence of the decision to be fulfilled;
3) propositions concerning the fulfillment methods;
4) the deadline of the fulfillment of the decision stipulated by law;
5) propositions as to actions of the Cabinet of Ministers of Ukraine or its competent organs concerning the punishment of the guilty of abusing human rights, resumed by the European court decision.
In this application other information may be reflected, if the officer in charge of the Convention finds them needed for the unconditional fulfillment of the European court decision within the term determined by this law.
The European court decision legalized according to part 1 of Article 2 of this law is appended to the application. Along with the officer in charge of the Convention the Minister of justice signs the application.
The officer in charge of the Convention assists in any possible way to the Committee of Ministers of the Council of Europe that surveys the execution of the European court decisions.
Every month the officer in charge of the Convention informs the Committee of Ministers of the Council of Europe through the Ministry of Foreign Affairs of Ukraine. Simultaneously these reports are officially published by the officer in charge of the Convention in the newspapers ’Golos Ukrainy’ and ’Uriadovy Kuryer’.
Article 6. Actions of the Prime-Minister of Ukraine and the Cabinet of Ministers of Ukraine concerning the fulfillment of the European court decisions.
During five days after the reception of the application of the officer in charge of the Convention about the fulfillment of the European court decision the Prime-Minister of Ukraine gathers the Cabinet of Ministers for the consideration of the application.
According to the result of considering the application, the Cabinet of Ministers takes a resolution, which determines the procedure of the execution of the European court decision, as well as the deadline within the time interval determined by Article 8 of this Law. Organs and officials, which are mentioned in the resolution, must fulfil the European court decision within the term determined by Article 8 of this Law.
In case of necessity to adopt new legal acts or update the operating legal acts on the fulfillment of the European court decisions the Cabinet of Ministers turns to the President of Ukraine with the request to pass as urgent the needed law draft to the Supreme Rada of Ukraine. The draft shall be considered by the Supreme Rada within the time interval determined by Article 8 of this Law.
In case of necessity, according to the European court decision, to recompense the moral and/or material damage to a person or an organization the Cabinet of Ministers applies measures determined by Article 7 of this Law.
Article 7. The procedure of the material recompensing according to the European court decision .
The Cabinet of Ministers of Ukraine shall, within the time interval determined by Article 8 of this Law, recompense the damage and court expenses to the person or organization, according to the European court decision.
The recompensing is paid from the state budget of Ukraine.
The property mentioned in the decision is returned as such, if it is not possible, then its cost is fully recompensed, according to its current market cost. The priority in the evaluation of the property mainly belongs to the plaintiff. In case of death of the plaintiff, his right for recompensing passes to his heirs.
The recompensing sum is transferred to plaintiff’s bank account by the Main Directorate of the state treasury of Ukraine. In case if the account does not exist, it is opened by the Main Directorate of the state treasury for the expenditures from the state budget in the bank selected by the plaintiff.
The sum transferred to the plaintiff’s account from the Main Directorate of the state treasury may be given to him in cash, if he wishes so.
The Cabinet of Ministers may turn to the court with a regressive claim with respect to the organ or official, whose activity or passivity resulted in the violation of human rights, which were restored by the European court decision.
Article 8. The term of the fulfillment of the European court decisions .
The European court decisions must be immediately obeyed starting on the day of the reception from the claimant (or his representative) the directive about the execution of the decision.
If one of the sides turned with the request to pass the case to the Grander chamber, then the execution of the European court decision is suspended until the Grand chamber takes a final decision.
The decision of the Grand chamber is final and must be fulfilled according to the procedure stipulated by this Law.
III. COMPULSIVE FULFILLMENT OF THE EUROPEAN COURT DECISIONS
Article 9. The organs of the compulsive fulfillment of the European court decisions.
The compulsive fulfillment of the European court decisions is imposed on the state executive service, which enters the system of organs of the Ministry of Justice of Ukraine in case, when the European court decision was not fulfilled by the Cabinet of Ministers within the proper term.
In order to accelerate the fulfillment of the European court decision, a group of state executors may be created according to the decision of the head of the State executive service.
Article 10. The procedure of the compulsive fulfillment of the European court decisions.
The compulsive fulfillment of the European court decisions is carried out according to the procedure of the Ukrainian Law ’On the execution procedure’, taking into account peculiarities of this Law.
Article 11. The control over the execution of the European court decision.
The control over the terms, correctness and fullness of the execution of the decisions by a state executor is realized by the department head of the state executive service, to whom the state executor directly obeys, and the head of the state executive service.
IV. THE RESPONSIBILITY FOR DODGING THE FULFILLMENT OF THE EUROPEAN COURT DECISIONS
Article 12. The responsibility of the Cabinet of Ministers of Ukraine for the breaking the terms of the fulfillment of the European court decisions.
If the Cabinet of Ministers breaks the term of the fulfillment of the European court decision determined by this Law, then a fine is paid to the claimant from the sums given from the state budget to sustain the Cabinet of Ministers; the fine may reach 25% of total recompense.
The decision about the fine is taken by the state executor and is approved by the head of the state executive service.
The fine is paid tot he claimant according to the procedure described in Article 7 of this Law.
Article 13. The responsibility of state officials for dodging the fulfillment of the European court decisions.
If the European court decision is not fulfilled or the deadlines are broken because of the lax execution of their service duties by the state officials, then the guilty officials bear disciplinary, administrative, civil and criminal responsibility stipulated by the Ukrainian laws.
Article 14. The responsibility for the deliberate non-fulfillment of the European court decisions.
Persons guilty of the deliberate non-fulfillment of the European court decisions bear the responsibility stipulated by part 2 of Article 176-4 of the Criminal Code of Ukraine.
V. FINAL CONCLUSIONS
The sums that had to be paid to plaintiffs during 1999 are paid from the Reserve fund of the Cabinet of Ministers of Ukraine.
Later in the Ukrainian Law on the state budget proper sums in the budget must be determined. The calculations of the expected sums are given to the Ministry of Finances by the officer in charge of the Convention and approved by the Minister of justice in the process planning the state budget of Ukraine.
This Law becomes operating since the day of its publication.
This law regulates the legal relations that arise in the connection with the necessity to fulfil the decisions of the European court of human rights according to complaints of individuals, NGOs and groups of individuals about the abuse by Ukraine of their rights, stipulated by the Convention on the protection of human rights and basic freedoms, 1950.
I. GENERAL
Article 1. Decisions of the European court of human rights to be fulfilled .
Decisions of chambers of the European court of human rights and of the Grand chamber of the European court of human rights (European court decisions, in what follows) are compulsive for the fulfillment on the entire territory of Ukraine.
The procedure of the fulfillment of the European court decisions are determined by this Law, the Ukrainian Law ’On the fulfillment procedures’ and others legal acts, taking account of the peculiarities stipulated by this Law.
Article 2. The procedures of legalization and publication of the European court decisions.
The official translation to Ukraine and the proof of the authenticity of the translation of the European court decisions is provided by the permanent representation of Ukraine in the Council of Europe during one week from the date of issuing the decision.
Being legalized in the standard way the European court decision is immediately sent to the side concerned (plaintiff) and to the officer in charge of executing the Convention on the protection of human rights and basic freedoms (officer in charge of the Convention, in what follows).
The officer in charge of the Convention immediately sends the European court decision to the newspapers ’Golos Ukrainy’ and ’Uriadovy Kuryer’ that must publish the decision not later than a month from the moment of its issuing.
Article 3. The executive instrument of the fulfillment of the European court decisions .
The executive instrument of the fulfillment of the European court decisions is the European court decision legalized following the procedure stipulated in part 1 of Article 2 of this law.
II. THE PROCEDURE OF THE FULFILLMENT OF THE EUROPEAN COURT DECISIONS
Article 4. Handing the European court decisions for the fulfillment.
The side concerned (plaintiff) or its representative had the right, within the term determined by Article 84 of the Ukrainian law ’On the fulfillment procedures’, to turn to the officer in charge of the Convention with a written application about the fulfillment of the decision.
The application of the plaintiff (his representative) is, in the legal respect, not related to the fact of legalization of the European court decision.
Article 5. Actions of the officer in charge of the Convention concerning the fulfillment of the European court decision.
Within five days after the reception of the application about the fulfillment of the European court decision the officer in charge of the Convention turns to the Prime-Minister of Ukraine through the Minister of justice with the application about the fulfillment of the decision. The application must elucidate the following questions:
1) a brief summary of the case concerned;
2) the essence of the decision to be fulfilled;
3) propositions concerning the fulfillment methods;
4) the deadline of the fulfillment of the decision stipulated by law;
5) propositions as to actions of the Cabinet of Ministers of Ukraine or its competent organs concerning the punishment of the guilty of abusing human rights, resumed by the European court decision.
In this application other information may be reflected, if the officer in charge of the Convention finds them needed for the unconditional fulfillment of the European court decision within the term determined by this law.
The European court decision legalized according to part 1 of Article 2 of this law is appended to the application. Along with the officer in charge of the Convention the Minister of justice signs the application.
The officer in charge of the Convention assists in any possible way to the Committee of Ministers of the Council of Europe that surveys the execution of the European court decisions.
Every month the officer in charge of the Convention informs the Committee of Ministers of the Council of Europe through the Ministry of Foreign Affairs of Ukraine. Simultaneously these reports are officially published by the officer in charge of the Convention in the newspapers ’Golos Ukrainy’ and ’Uriadovy Kuryer’.
Article 6. Actions of the Prime-Minister of Ukraine and the Cabinet of Ministers of Ukraine concerning the fulfillment of the European court decisions.
During five days after the reception of the application of the officer in charge of the Convention about the fulfillment of the European court decision the Prime-Minister of Ukraine gathers the Cabinet of Ministers for the consideration of the application.
According to the result of considering the application, the Cabinet of Ministers takes a resolution, which determines the procedure of the execution of the European court decision, as well as the deadline within the time interval determined by Article 8 of this Law. Organs and officials, which are mentioned in the resolution, must fulfil the European court decision within the term determined by Article 8 of this Law.
In case of necessity to adopt new legal acts or update the operating legal acts on the fulfillment of the European court decisions the Cabinet of Ministers turns to the President of Ukraine with the request to pass as urgent the needed law draft to the Supreme Rada of Ukraine. The draft shall be considered by the Supreme Rada within the time interval determined by Article 8 of this Law.
In case of necessity, according to the European court decision, to recompense the moral and/or material damage to a person or an organization the Cabinet of Ministers applies measures determined by Article 7 of this Law.
Article 7. The procedure of the material recompensing according to the European court decision .
The Cabinet of Ministers of Ukraine shall, within the time interval determined by Article 8 of this Law, recompense the damage and court expenses to the person or organization, according to the European court decision.
The recompensing is paid from the state budget of Ukraine.
The property mentioned in the decision is returned as such, if it is not possible, then its cost is fully recompensed, according to its current market cost. The priority in the evaluation of the property mainly belongs to the plaintiff. In case of death of the plaintiff, his right for recompensing passes to his heirs.
The recompensing sum is transferred to plaintiff’s bank account by the Main Directorate of the state treasury of Ukraine. In case if the account does not exist, it is opened by the Main Directorate of the state treasury for the expenditures from the state budget in the bank selected by the plaintiff.
The sum transferred to the plaintiff’s account from the Main Directorate of the state treasury may be given to him in cash, if he wishes so.
The Cabinet of Ministers may turn to the court with a regressive claim with respect to the organ or official, whose activity or passivity resulted in the violation of human rights, which were restored by the European court decision.
Article 8. The term of the fulfillment of the European court decisions .
The European court decisions must be immediately obeyed starting on the day of the reception from the claimant (or his representative) the directive about the execution of the decision.
If one of the sides turned with the request to pass the case to the Grander chamber, then the execution of the European court decision is suspended until the Grand chamber takes a final decision.
The decision of the Grand chamber is final and must be fulfilled according to the procedure stipulated by this Law.
III. COMPULSIVE FULFILLMENT OF THE EUROPEAN COURT DECISIONS
Article 9. The organs of the compulsive fulfillment of the European court decisions.
The compulsive fulfillment of the European court decisions is imposed on the state executive service, which enters the system of organs of the Ministry of Justice of Ukraine in case, when the European court decision was not fulfilled by the Cabinet of Ministers within the proper term.
In order to accelerate the fulfillment of the European court decision, a group of state executors may be created according to the decision of the head of the State executive service.
Article 10. The procedure of the compulsive fulfillment of the European court decisions.
The compulsive fulfillment of the European court decisions is carried out according to the procedure of the Ukrainian Law ’On the execution procedure’, taking into account peculiarities of this Law.
Article 11. The control over the execution of the European court decision.
The control over the terms, correctness and fullness of the execution of the decisions by a state executor is realized by the department head of the state executive service, to whom the state executor directly obeys, and the head of the state executive service.
IV. THE RESPONSIBILITY FOR DODGING THE FULFILLMENT OF THE EUROPEAN COURT DECISIONS
Article 12. The responsibility of the Cabinet of Ministers of Ukraine for the breaking the terms of the fulfillment of the European court decisions.
If the Cabinet of Ministers breaks the term of the fulfillment of the European court decision determined by this Law, then a fine is paid to the claimant from the sums given from the state budget to sustain the Cabinet of Ministers; the fine may reach 25% of total recompense.
The decision about the fine is taken by the state executor and is approved by the head of the state executive service.
The fine is paid tot he claimant according to the procedure described in Article 7 of this Law.
Article 13. The responsibility of state officials for dodging the fulfillment of the European court decisions.
If the European court decision is not fulfilled or the deadlines are broken because of the lax execution of their service duties by the state officials, then the guilty officials bear disciplinary, administrative, civil and criminal responsibility stipulated by the Ukrainian laws.
Article 14. The responsibility for the deliberate non-fulfillment of the European court decisions.
Persons guilty of the deliberate non-fulfillment of the European court decisions bear the responsibility stipulated by part 2 of Article 176-4 of the Criminal Code of Ukraine.
V. FINAL CONCLUSIONS
The sums that had to be paid to plaintiffs during 1999 are paid from the Reserve fund of the Cabinet of Ministers of Ukraine.
Later in the Ukrainian Law on the state budget proper sums in the budget must be determined. The calculations of the expected sums are given to the Ministry of Finances by the officer in charge of the Convention and approved by the Minister of justice in the process planning the state budget of Ukraine.
This Law becomes operating since the day of its publication.