Strasbourg also no law for Ukraine’s authorities


Defence lawyer Rostyslav Kravets believes that the Ukrainian authorities prefer to not implement European Court of Human Rights [ECHR] judgements, and simply pay out the money awarded by the court in compensation for their non-implementation.

At the end of February ECHR passed the latest judgement ordering that compensation for material and moral damages of 3 thousand EUR each be paid in 127 cases where Ukraine had violated the European Convention on Human Rights.

The violations were of Article 6 § 1 (the right to a fair trial); Article 13  (the right to an effective legal remedy) and Article 1 of Protocol No. 1 to the Convention (protection of property rights). The applications were in the main lodged in 2009 and 2010.

The author notes that as a rule Ukraine pays out the amounts awarded by the Court, but does not revoke the actual court rulings in dispute. This practice has since 2004-2005 become entrenched.

One of the latest examples is the ECHR judgement in the case of former Interior Minister Yury Lutsenko.  As reported here, in July last year the Court in Strasbourg ordered Ukraine to pay Lutsenko 15 thousand EUR over his unlawful arrest and detention. The money if we are to believe officials was paid in January 2013, however Lutsenko remains in prison.

This point is not, in fact, quite clear in the author’s argument since the Court in Strasbourg found that Lutsenko’s detention back in December 2010 and extentions to it had violated his rights.  It has not yet considered any application on the substance of the charges against Lutsenko of which he was convicted in 2011.  He is now imrisoned as the result of court sentences (translator)

The Constitutional Court has effectively given the government the right to not fulfil the obligations which it took upon itself if the necessary expenditure is not set out in the Budget.

Experience shows that in the majority of cases the actual ECHR judgements are not implemented.  Those responsible for such judgements remain entirely unpunished.

The latest change in management of the State Bailiffs’ Service has not resolved this issue, while legislation merely encourages non-implementation of court rulings, including those from Strasbourg.

The author sees the reasons as lying in irresponsibility of officialdom at all levels, as well as the prevalent negativism in society with regard to the judiciary and justice system as a whole.

The author returns to the Constitutional Court judgement No. 3-pn/2012 which makes it possible to ignore obligations if the money for them has not been set aside in the budget.  In effect, he says, the Constitutional Court has legalized the practice whereby state and public sector institutions do not enforce court rulings.

In economic issues the courts should in theory take a different stand.  In a text issued on 18 February 2013 the High Economic Court writes that the lack of budgetary funding envisaged in the State budget is not grounds for waiving liability for breaking the commitments. However on the whole the situation both with implementation by the state of court rulings, and with the reduction in disputes linked with non-implementation by the state of its obligations is only getting worse, as demonstrated by the latest ECHR ruling.

The author concludes by saying that we must hope that the new Law on State guarantees regarding implementation of court rulings which came into force on 1 January 2013 will have a sobering effect on officials and expedite implementation of domestic court rulings.  And that the practice of ignoring implementation of ECHR judgments will stop.

Abridged from an article here

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