Comments on the draft of the Law of Ukraine On the procedures of fulfilling decisions of the European court of human rights
The first statement that attracts attention in the suggested draft is the definition of the decision, which is proposed as obligatory for execution on all the territory of Ukraine. Article 1 of the draft mentions decisions of the chambers of the European court of human rights and decisions of the Grand chamber. This is a too broad definition: the Court takes about 200 decisions per year, and, naturally, Ukraine must not execute them all. In the juridical circles of Ukraine a discussion is going on whether Ukraine must obey the decisions not concerning Ukraine, i.e. about the precedent character of Court decisions. In this connection it should be noted that in this draft the authors have in mind only the decisions concerning Ukraine and only of those, where the Court found the violation of the European Convention of protecting human rights and basic freedoms.
The so-called friendly regulation mentioned in Part 1 of the Convention is absent in the draft. When the complaint about a violation of the Convention is regarded by the Court as acceptable, a court chamber proposes its services to the interested sides for friendly regulation of the cases. Although the agreement about the regulation is approved by the Court, it is given the form of a protocol on friendly regulation, which, in our opinion, should be mentioned in Article 3 of the Law as an executive document equated to a Court decision.
The third remark about Article 1 is related to so-called temporary measures for the protection of the claimant from the power, which appeared for the first time in the case of Cruz Varaz vs. Sweden. Such measures may include the protection from extradition and similar methods. Item (a) of part 1 Article 38 of the Convention must be mentioned here, according to which all the states must by all means promote the consideration of cases by the Court, in particular, they must provide additional document by requests of the Court. These requests should be mentioned in the law too.
The complete exclusion of the ombudsperson from the execution of the decisions of the Court is also strange. For example, according to part 5 Article 5 of the draft, the officer in charge of the Convention on the protecting human rights and basic freedoms must direct every month his reports on the course of execution of the decisions to the Committee of Ministers of the Council of Europe. However, according to Article 19 of the law On the ombudsperson, the latter must take part in the preparation of the reports on human rights, which are passed by Ukraine to the international organization, in accordance with the operating international agreements, which regarded as operating by the Supreme Rada of Ukraine. Thus, it is necessary either to change the law On the ombudsperson or to add to the draft the statements that such reports about the execution of the Court decisions must be agreed (jointly prepared?) with the ombudsperson.
Statements on certain actions of the Cabinet of Ministers for the execution of the decisions look doubtful. As to the general measures stipulated in part 3 Article 6, the establishment of the duty of the Cabinet of Ministers to prepare the document for Presidents consideration, and introducing this document by the President as urgent to the Supreme Rada look insufficient. The matter is that the Court itself, when it acknowledges these or those acts of the state inconsistent with the Convention, never formulates directly, which concrete changes must be introduced into the legislation. This is a responsibility of national organs. Such actions may have a from, for example, of the ombudspersons representations to the Constitutional Court on the acknowledgement unconstitutional of some legal act, canceling or changing Presidents acts, the Cabinet of Ministers, ministries, agencies and local authorities. At last, sometimes a need arises to change not legal acts, but existing application practices. In this case the most efficient way is taking by the Supreme Court the proper decisions of the Plenum or request to the Constitutional Court for the interpretation of a law.
As to individual measures, it must be noted that taking just decisions by the Court is far from being frequent and is of subsidiary character (it is appointed only when the Court regards as unsatisfactory the compensation stipulated by national legislation). If the compensation is determined by the national laws, then a problem may arise connected with the necessity to change or cancel the court decision that violates the Convention. In this case part 2 Article 6 of the draft may collide with Articles 124, 126-128 of the Constitution of Ukraine in the part, where the duty of all organs to fulfil resolutions of the Cabinet of Ministers on the realization of court decisions. To solve this problem we count necessary, simultaneously with the consideration of this draft, to introduce to the Supreme Rada a draft of changes in Article 343 and 397 of the Criminal-Procedural Code and the Civil-Procedural Code, respectively, by including, as a reason for reconsideration of the case because of the appearance of new circumstances, the Court decision on the abuse of human rights connected the consideration of the case (a similar system is used, for example, in Belgium). Besides, other than material compensation may be introduced into the draft, for example, an official public apology of Ukraine before the victim of the violation.
Having set in Article 8 the terms of fulfilling the decision, the authors of the draft absolutely did not take into account that that the moment of the fulfillment is not the moment, when the corresponding resolution of some national organ is taken, and even not he moment of its actual fulfillment, but the date of taking by the Committee of Ministers of the Council of Europe the resolution that its functions on the surveillance on the fulfillment of the court decision are completed. And the Committee may take this resolution only after receiving the corresponding information from the national authorities. This should also be mentioned in the draft.
Some doubts are caused about the efficiency of the activities of the organs of compulsory execution of decisions, stipulated by Article 9 – State executive service. According to the draft, the main defendant is the Cabinet of Ministers: it is from its reserve fund that the compensations must be paid at first, the same organ is responsible for breaking the deadline of the fulfillment (Article 12 of the draft). The State executive service is, however, a branch of the Ministry of Justice, which, in its turn, obeys the Cabinet of Ministers.