2006 Law of Ukraine on the Enforcement of Judgments and
the Application of the Case-Law of the European Court of Human Rights
This
Law regulates relations emanating from: the State’s obligation to enforce
judgments of the European Court of Human Rights in cases against Ukraine; the
necessity to eliminate reasons of violation by Ukraine of the Convention for the
Protection of Human Rights and Fundamental Freedoms and protocols thereto; the
need to implement European human rights standards into legal and administrative
practice of Ukraine; and the necessity to create conditions to reduce the number
of applications before the European Court of Human Rights against Ukraine.
Section 1. General Provisions
Article 1. Definitions
1.1
For the purposes of this Law the following terms shall be used in the following
meaning:
the
Convention
– the 1950 Convention for the Protection of Human Rights and Fundamental
Freedoms and Protocols thereto agreed to be binding by the Verkhovna Rada of
Ukraine;
the
Court
– the European Court of Human Rights;
the
Commission
– the European Commission of Human Rights;
the
Court’s case-law
– the case-law of the European Court of Human Rights and the European Commission
of Human Rights;
Judgment
– a) a final judgment of the European Court of Human Rights in a case against
Ukraine, declaring a violation of the Convention for the Protection of Human
Rights and Fundamental Freedoms; b) a final judgment of the European Court of
Human Rights on just satisfaction in cases against Ukraine; c) judgments
(decisions) of the European Court of Human Rights on a friendly settlement in
cases against Ukraine;
Creditor
– a) an applicant (his/her representative or successor) before the European
Court of Human Rights in a case against Ukraine in whose favour the Court
rendered its judgment or with whom a friendly settlement was effected; b) a
person (a group of persons) in whose favour the Court found in its judgment an
obligation of Ukraine upon an inter-State case;
Compensation
– a) an amount of just satisfaction, defined in the Court’s judgment in
accordance with Article 41 of the Convention for the Protection of Human Rights
and Fundamental Freedoms; b) an amount of payment referred to in the Court’s
judgment (decision) on a friendly settlement to be paid in favour of Creditor;
Enforcement of judgment
– a) payment of compensation to Creditor and taking of additional individual
measures; b) taking of general measures;
The
Office of the Government’s Agent
– a body in charge of representation of Ukraine before the European Court of
Human Rights and of the enforcement of a judgment rendered by the latter;
Original text
– an official text compiled in an official language of the Council of Europe of:
a) the 1950 Convention for the Protection of Human Rights and Fundamental
Freedoms and Protocols thereto; b) judgments and decisions of the European Court
of Human Rights; c) decisions of the European Commission of Human Rights.
Article 2. Enforcement of Judgments
2.1.
Judgments are binding and subject to enforcement throughout the whole territory
of Ukraine pursuant to Article 46 of the Convention.
2.2.
Procedure for the enforcement of Judgments is determined by the present Law, the
Law of Ukraine “On Enforcement Proceedings”, and other legislative acts subject
to peculiarities provided for by the present Law.
Article 3. Financing of expenses for the enforcement of Judgments
3.1.
Judgments shall be enforced at the expense of the State Budget of Ukraine.
Section 2. Access to Judgments
Article 4. Summary of a Judgment
4.1.
The Office of the Government’s Agent within three days from receipt of a
notification that a Judgment has become final shall prepare and submit for the
publication in the “Government’s Currier” [Uriadovyi Kurier] and the
“Voice of Ukraine” [Golos Ukrayiny] newspapers a summary of the Judgment
in Ukrainian (hereinafter referred to as “a summary of a Judgment”) which shall
contain:
a) an
official title of the Judgment in original and in Ukrainian translation;
b)
number of the application before the Court;
c)
the date of the Judgment;
d)
brief statement of facts in the case;
e)
brief statement of law in the case;
f)
translation of the resolving part of the Judgment.
4.2.
The newspapers mentioned in Article 4.1. shall publish the summary of the
Judgment within seven days from its receipt.
Article 5. Notification of the Judgment
5.1.
The Office of the Government’s Agent shall send the summary and a copy of the
authentic text of the Judgment to the Creditor, the Ombudsperson, all state
bodies, officials, and other persons directly affected by the Judgment.
Article 6. Translation and publication of the Judgment
6.1.
With the aim of taking general measures the State ensures the translation into
Ukrainian and the publication of full texts of Judgments in a publication
specialized in the Court’s case-law and disseminated in the legal community.
6.2.
Authenticity of translations of full texts of Judgments shall be certified by
the Office of the Government’s Agent.
6.3.
The Office of the Government’s Agent shall select on a competitive basis an
edition, which will translate and publish the full texts of Judgments, as well
as order the necessary quantity of copies of that edition to provide courts,
prosecutor’s offices and justice, law-enforcement and security services bodies,
penitentiaries and other interested agencies with it.
6.4.
The state body in charge of courts’ material-organizational support shall
provide judges with the translation of full texts of Judgments.
Section 3. Enforcement of Judgments
Article 7. Enforcement of a Judgment with regard to the payment of compensation
7.1.
The Office of the Government’s Agent within three days from receipt of the
Court’s notification that a Judgment has become final shall:
a)
notify Creditor and explain his/her right to file an application with the State
Bailiff’s Office on the payment of compensation; the application shall contain
the data of the Creditor’s bank account for the transfer of funds;
b)
send to the State Bailiff’s Office the authentic text of the Judgment and the
translation of the resolving part thereof. The authenticity of the
translation is certified by the Office of the Government’s Agent;
The
State Bailiff’s Office within three days from receipt of documents specified in
Article 7.1.(b) shall open enforcement proceedings.
7.2.
Failure of the Creditor to submit an application on the payment of compensation
shall not halt the enforcement of the Judgment.
Article 8. Payment of a compensation
8.1.
Payment of compensation to the Creditor shall be effected within three months
from the date when the Judgment has become final.
8.2.
In case of failure to pay compensation within the time-limits set forth in
Article 4.1. a simple interest shall be payable on the above amount in
accordance with the Judgment.
8.3.
Within one month after the opening of the enforcement proceedings the State
Bailiff’s Office shall send the ruling on the opening of the enforcement
proceedings and documents specified in Article 7.1.(b) of this Law to the State
Treasury of Ukraine.
8.4.
The State Treasury of Ukraine within 10 days from the date of receipt of the
documents mentioned in Article 8.3. of this Law shall transfer the money from
the relevant budgetary program of the State Budget of Ukraine to the bank
account specified by the Creditor; in case of absence of the latter money shall
be transferred to the deposit account of the State Bailiff’s Office.
8.5.
Te confirmation of the transfer received from the State Treasury of Ukraine is a
ground for the State Bailiff’s Office to close the enforcement proceedings.
8.6.
The State Bailiff’s Office within three days shall send to the Office of the
Government’s Agent the ruling on closure of the enforcement proceedings as well
as the confirmation of the transfer of money.
Article 9. Certain aspects of the payment of compensation
9.1.
In cases when it is impossible to identify the place of residence (location) of
the Creditor - natural person as well as in case of death of the Creditor -
natural person or reorganisation/liquidation of the Creditor - legal entity, the
amount of compensation shall be transferred to the deposit account of the State
Bailiff’s Office. The same procedure shall be used in the case specified in
Article 7.2 .of this Law.
9.2.
The amount of compensation deposited in the account of the State Bailiff’s
Office shall be transferred to:
a)
the Creditor’s account after his/her submission of the required application;
b)
accounts of heirs of the Creditor - natural person after they have presented
duly certified documents entitle them to obtain the heritage;
c)
account of successor of the reorganised Creditor - legal entity after it have
presented duly certified documents proving the succession;
d)
accounts of the founders (participants, shareholders) of the liquidated Creditor
- legal entity after the have submitted court decisions confirming their status
of founders (participants, shareholders) of the liquidated Creditor - legal
entity at the moment of liquidation and determining the share of compensation to
be paid to each of the founders (participants, shareholders).
9.3.
Information on the availability of funds on the deposit account of the State
Bailiff’s Office the State Bailiff’s Office shall send to the Office of the
Government’s Agent for the further notification of the Committee of Ministers of
the Council of Europe.
9.5.
The Office of the Government’s Agent shall act as the claimant in cases
concerning indemnification of losses inflicted on the State Budget of Ukraine as
a result of payment of compensation and shall be obliged to lodge such a claim
with a court within three months from the moment specified in Article 8.4. of
this Law.
Article 10. Additional individual measures
10.1.
Additional individual measures shall be taken in addition to the payment of
compensation and are aimed at restoring the infringed rights of the Creditor.
10.2.
Additional individual measures include:
a)
restoring, as far as possible, the previous status which the Creditor has had
before his/her Conventional rights were breached (restitutio in integrum);
b)
measures, except for compensation, envisaged in the Court’s judgment (decision)
on a friendly settlement.
10.3.
The previous status of the Creditor shall be restored, inter alia, by
means of:
a)
repeat consideration of the case by the court, including the reopening of
proceedings in the case;
b)
repeat consideration of the case by the administrative body.
Article 11. Actions which the Office of the Government’s Agent shall take with
regard to additional individual measures
11.1.
The Office of the Government’s Agent within three days from receipt of the
Court’s notification that the Judgment has become final shall:
a)
send the Creditor a notification explaining his/her right to initiate
proceedings on the review of his/her case and/or to reopen the proceedings in
compliance with current legislation;
b)
notify the bodies in charge of the execution of additional individual measures
specified in the Court’s judgment (decision) on a friendly settlement about the
contents, manner and terms of these measures’ execution. This notification shall
be appended with translation of the judgment (decision) on a friendly settlement
the authenticity of which is certified by the Office of the Government’s Agent.
11.2
Control over the execution of additional individual measures specified in the
Court’s judgment on a friendly settlement is exercised by the Office of the
Government’s Agent.
11.3
The Office of the Government’s Agent – while exercising the control as provided
for in Article 11.2. of this Law – shall be entitled to request from the bodies
in charge of the execution of additional individual measures specified in the
Court’s judgment on a friendly settlement information on the course and results
of these measures’ execution as well as to present a motion to the Prime
Minister of Ukraine to secure the execution of additional individual measures.
Article 12. Actions which the bodies in charge of the execution of additional
individual measures shall take
12.1.
The bodies in charge of the execution of additional individual measures shall:
a)
immediately and within the time-limit set forth in the Judgment and/or current
legislation execute additional individual measures;
b)
provide information about the course and results of additional individual
measures’ execution upon requests of the Office of the Government’s Agent;
c)
effectively and without undue delays reply to submissions by the Office of the
Government’s Agent;
d)
inform the Office of the Government’s Agent about the completion of additional
individual measures’ execution.
Article 13. General measures
13.1.
General measures shall be taken by the State in order to secure the respect of
Convention’s provisions the violation of which has been found in Judgment, to
eliminate underlying systemic problems which are at the heart of violation found
by the Court as well as to eliminate the reasons for submission to the Court of
applications against Ukraine caused by the problem which has been already
considered by the Court.
13.2.
General measures are aimed at eliminating underlying systemic problem indicated
in Judgment as well as its origin through:
a)
amendments to the current legislation and changes in the practice of its
application;
b)
changes in administrative practice;
c)
legal review of the draft legislation;
d)
professional training on the Convention and the Court’s case-law of prosecutors,
lawyers, law-enforcement bodies’ officers, immigration service employees, other
persons whose professional activity is connected with law enforcement and
restriction of person’s liberty;
e)
other measures, which shall be determined under the supervision of the Committee
of Ministers of the Council of Europe by the respondent State in accordance with
Judgment. These measures shall be aimed at eliminating underlying systemic
problems, ceasing violations of the Convention caused by these shortcomings and
securing the maximum redress for these violations.
Article 14. Actions which the Office of the Government’s Agent shall take with
regard to general measures
14.1.
The Office of the Government’s Agent within one month from receipt of the
Court’s notification that Judgment has become final shall prepare and send to
the Cabinet of Ministers of Ukraine a motion on general measures (hereinafter
referred to as “the Motion”).
14.2.
The Motion shall contain proposals on settlement of an underlying systemic
problem indicated in the Judgment as well as its origin, namely:
a)
analysis of circumstances which caused the breach of the Convention;
b)
proposals as to the amendments to the current legislation;
c)
proposals as to the changes in administrative practice;
d)
proposals to be taken into account during the drafting of laws;
e)
proposals as to the professional training on the Convention and the Court’s
case-law of judges, prosecutors, lawyers, law-enforcement officers, immigration
service employees, and other persons whose professional activity is connected
with law enforcement and restriction person’s liberty;
f)
proposals as to other general measures aimed at eliminating the underlying
systemic problems, ceasing violations of the Convention caused by these
shortcomings and securing the maximum redress for these violations.
g)
list of central executive bodies in charge of execution of measures proposed in
the Motion.
14.3.
The Office of the Government’s Agent, at the same time, shall prepare an
analytical review for the Supreme Court of Ukraine which shall include:
a)
analysis of circumstances which caused the breach of the Convention;
b)
proposals on the bringing of national courts’ case-law in line with requirements
of the Convention.
14.4.
The Office of the Government’s Agent, at the same time, shall prepare and send
to the secretariat of the Verkhovna Rada of Ukraine proposals to be taken into
account during the drafting of laws.
Article 15. Actions which the Cabinet of Ministers of Ukraine shall take with
regard to general measures
15.1.
The Prime Minister of Ukraine, following the Motion provided in Article 14 of
this Law, shall determine central executive bodies in charge of the execution of
general measures and immediately provide them with relevant instructions.
15.2.
The central executive body determined in the Prime Minister’s instruction,
within the term set in the instruction, shall:
a)
ensure, within his/her competence, the adoption of acts to execute general
measures and control the enforcement thereof;
b)
make a submission to the Cabinet of Ministers of Ukraine on the adopting of new,
abolishing or amending active acts of national legislation.
15.3.
The Cabinet of Ministers of Ukraine shall:
a)
adopt, within its competence, acts to execute general measures;
b)
submit to the Verkhovna Rada of Ukraine according to the legislative initiative
procedure draft laws proposals on the adopting of new, abolishing or amending of
active laws.
15.4.
These acts shall be adopted and relevant draft laws shall be submitted by the
Cabinet of Ministers of Ukraine to the Verkhovna Rada of Ukraine within three
months from the date when the Prime Minister of Ukraine has issued the
instruction specified in Article 15.1. of this Law.
Article 16. Responsibility for the non-execution or improper execution of
Judgments
16.1
Those officials who are in charge of the execution of Judgments and failed to
execute it or did it improperly shall bear administrative, civil, or criminal
responsibility as provided for by laws of Ukraine.
Section 4. Application of the Convention and the case-law of the European Court
of Human Rights in Ukraine
Article 17. Application by courts
17.1.
While adjudicating cases courts shall apply the Convention and the case-law of
the Court as a source of law.
Article 18. Order reference
18.1.
In order to make a reference to the text of the Convention courts shall use the
official translation of the Convention into Ukrainian (hereinafter referred to
as “the translation”).
18.2.
In order to make a reference to judgments and decisions of the Court and
decisions of the Commission courts shall use translations published in the
outlet specified in Article 6 of this Law.
18.3.
In case of the absence of the translation of Judgment or decision of the Court
or decision of the Commission, courts shall use their original texts.
18.4.
If a linguistic discrepancy between the translation and the original text is
found, courts shall use the original text.
18.5.
If a linguistic discrepancy between the original texts is found and/or if need
be to carry out a linguistic interpretation of the original text courts shall
use the relevant case-law of the Court.
Article 19. Application in the legislative sphere and administrative practice
19.1.
The Office of the Government’s Agent shall carry out a legal review of all draft
laws, as well as by-laws subject to state registration, as to their compliance
with the Convention and shall prepare an opinion thereon.
19.2.
If the review specified in part 1 of this Article was not carried out or an
opinion on the inconsistency of the by-law was issued, its state registration
refused.
19.3.
The Office of the Government’s Agent shall provide regular and reasonably
periodic examination of current legislation on its consistency with the
Convention and the Court’s case-law, especially in the spheres relating to the
activity of law-enforcement bodies, criminal proceedings, and restriction of
liberty.
19.4.
Following the examination set forth in Article 19.3. of this Law, the Office of
the Government’s Agent shall submit proposals to the Cabinet of Ministers of
Ukraine on amendments to the current legislation in order to bring it in
conformity with requirements of the Convention and the relevant Court’s
case-law.
19.5.
The ministries and departments shall provide within their competence a
systematic control over the adherence of administrative practice to the
Convention and the Court’s case-law.
Section 5. Final provisions
1.
This Law shall enter into force on the date of its publication.
2.
The Cabinet of Ministers of Ukraine shall:
1)
within one month from the entrance into force of this law:
bring
its acts in line with this Law;
ensure that acts of the central executive bodies are brought in line with this
Law;
2)
take action and, if necessary, submit proposals to the Verkhovna Rada of Ukraine
on the incorporation of questions of the study of the Convention and the Court’s
case-law in:
qualifying requirements for some categories of judges, prosecutors, advocates,
and notaries;
programmes of initial training and further raising of qualification of judges,
prosecutors, advocates, law-enforcement officers, immigration service employees,
and other persons whose professional activity is connected with law enforcement
and restriction of person’s liberty.
3)
annually envisage in a separate budgetary program of the draft State Budget of
Ukraine the funds for the enforcement of Judgments of the European Court of
Human Rights.
President of Ukraine V.Yushchenko
Kyiv,
23 February 2006
No. 3477-IV
Law
No.3477-IV of 23 February 2006. This is an unofficial English-language
translation provided to the Rapporteur during his visit to Kyiv. During
his visit to Ukraine, the Rapporteur was also provided with a number of
other relevant texts, namely Presidential Decree No.361/2006 of 10 March
2006 “About the Concept for the Improvement of the Judiciary and
Ensuring Fair Trial in Ukraine in Line with European Standards” and
Presidential Decree No.242/2006 of 20 March 2006 on an “Action Plan”
thereon; draft presidential decree on the adoption of the
National Action Plan for ensuring enforcement of court decisions; and
Resolution of the Cabinet of Ministers of Ukraine, No.784, of 31 May
2006, entitled “Government Agent before the European Court of Human
Rights Regulations” (English language translations). These documents are
on file with the Committee’s Secretariat.
