The problem of non-implementation of judgements of the European court of human rights in Ukraine in the context of the rule of law (methodological and comparative aspects)

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THE PROBLEM OF NON-IMPLEMENTATION OF JUDGEMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS IN UKRAINE IN THE CONTEXT OF THE RULE OF LAW (METHODOLOGICAL AND COMPARATIVE ASPECTS)

National Academy of Legal Sciences of Ukraine Kharkiv, Ukraine

Department of Theory and Philosophy of Law Yaroslav Mudryi National Law University Kharkiv, Ukraine

Oleh O. Petryshyn

Scientific Research Institute of State Building and Local Government National Academy of Legal Sciences of Ukraine Kharkiv, Ukraine

Department of the European Union Law Yaroslav Mudryi National Law University Kharkiv, Ukraine

Oleh S. Hyliaka

National Academy of Legal Sciences of Ukraine Kharkiv, Ukraine

Department of Private International and Comparative Law Yaroslav Mudryi National Law University Kharkiv, Ukraine

Abstract

The article is devoted to the problem of non-implementation of the decisions of the ECtHR in Ukraine in the context of the rule of law. The relevance of the subject matter is substantiated by the critical situation regarding Ukraine's compliance with its international obligations. The objective of the study is to develop a set of principles and policies to be implemented in Ukraine to strengthen the rule of law (as a fundamental democratic institute), as an essential factor for ensuring human rights in the context of re-establishing a proper international cooperation with the key European institution in the field of human rights. According to the analysis of the degree of coverage of the issue, the existing papers on the mentioned problem are rather described by point-by-point recommendations aimed at “damage control”, rather than at an in-depth resolution of the situation. The methodological basis of the research consists of the complex of general and special research methods, while philosophical methods were used to ensure the understanding of the essence, characteristics, and features of the phenomena under study. The research resulted in the development of a set of theses that demonstrate the depth of the problem under study that manifests through untimely and inconsistent normative-legal regulation, lack of tangible means of protection of human rights in Ukraine, inappropriate approach to the adoption and execution of international obligations. The authors argue in favour of the need to ensure three key aspects of the implementation of the rule of law - guaranteeing consistency of state policies and actions of officials; the formation of a stable system of administrative management; accountability, and responsibility of decision-makers. The practical relevance of the study is manifested through a set of recommendations, including the creation of a system to assess the effectiveness of reforms in terms of the rule of law; the formation of a mechanism for implementing the responsibility of decision-makers; the revision of procedures for the adoption of legal acts; the need to restart and complete the reform of the justice system, to involve NGOs in the processes of forming such; to create rules of cooperation between the state and the elites

Keywords: ECtHR, ECHR, basic human rights, democracy, judicial enforcement

Олександр Віталійович Петришин

Національна академія правових наук України, Харків, Україна

Кафедра теорії та філософії права Національний юридичний університет імені Ярослава Мудрого Харків, Україна

Олег Олександрович Петришин

Науково-дослідний інститут державного будівництва та місцевого самоврядування Національна академія правових наук України Харків, Україна

Кафедра права Європейського Союзу Національний юридичний університет імені Ярослава Мудрого Харків, Україна

Олег Сергійович Гиляка

Національна академія правових наук України Харків, Україна

Кафедра міжнародного приватного права та порівняльного правознавства Національний юридичний університет імені Ярослава Мудрого, Харків, Україна

ПРОБЛЕМИ НЕВИКОНАННЯ РІШЕНЬ ЄВРОПЕЙСЬКОГО СУДУ З ПРАВ ЛЮДИНИ В УКРАЇНІ В КОНТЕКСТІ ВЕРХОВЕНСТВА ПРАВА (МЕТОДОЛОГІЧНИЙ ТА ПОРІВНЯЛЬНИЙ АСПЕКТИ)

INTRODUCTION

The problem of non-enforcement of ECtHR judgements has remained significant since the end of 2009 when the Court handed down its pilot judgement in the case No. 40450/04 “Yuriy Nikolayevich Ivanov v. Ukraine”¹. Ukrainian academics have addressed this problem mostly in the context of the Court's protection of the rights enshrined in Article 6 of the ECHR and the consequences that this decision entailed (followed by the judgement “Burmych and others v. Ukraine” app. nos. 46852/13 et al. HUDOC. Case of Yuriy Nikolayevich Ivanov v. Ukraine (Application no. 40450/04). (2009, October). Retrieved from http://hudoc.echr.coe.int/fre?i=001-95032. HUDOC. Case of Burmych and others v. Ukraine (Applications nos. 46852/13 et al.). (2017, October). Retrieved from http://hudoc.echr.coe.int/fre?i=001-178082.). However, revisiting this problem in 2021 makes it possible to conclude not only the failure of Ukraine to respond appropriately, and the undue implementation of its obligations under the Plan of Action [1], but also the aggravation of the situation in the light of other articles.

The non-execution of the decisions of domestic courts led to further reaction of the ECtHR, and the non-capture of the general situation concerning the problems of interaction between Ukraine and the Court gave rise to several new problems in ensuring the rights set out in other articles of the Convention (the cases “Nevmerzhytskyi/Sukachov v. Ukraine” (Article 3) HUDOC. Case of Sukachov v. Ukraine (Application no. 14057/17). (2020, January). Retrieved from http://hudoc.echr.coe.int/ spa?i=001-200448., “Zelenchuk and Tsytsyura v. Ukraine” (Article 1 of the First Protocol) HUDOC. Case of Zelenchuk and Tsytsyura v. Ukraine (Applications nos. 846/16 and 1075/16). (2018, May). Retrieved from http://hudoc.echr.coe.int/eng?i=001-183128.. Parliamentary Assembly of the Council of Europe's Resolution 2075 (2015) “Implementation of judgements of the European Court of Human Rights” dated September 30, 20 1 5 Resolution of the Parliamentary Assembly of the Council of Europe 2075 “Implementation of judgements of the European Court of Human Rights”. (2015, September). Retrieved from http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=22197&lang=en., the Court's public statements and forced measures on the strike-out and transmission to the Committee of Ministers of more than 12,000 Ukrainian cases fully reflect the lack of progress in solving this issue. Separately, it is worth recalling the significant delays in the implementation of ECtHR judgements, which in the case of Ukraine (the average period of implementation of a judgement reaches 7 years) is effectively reduced to its non-implementation.

Such interaction between Ukraine and the ECtHR cannot be considered appropriate for two reasons. Firstly, the adoption of Ukrainian constitutional amendments on February 7, 2019 [2], which enshrine the Euro-integration and Euro-Atlantic course. Secondly, the strengthening of mutual cooperation with the EU in the framework of the Association Agreement, both lose their practical meaning and potential when it is not only impossible to ensure implementation of international obligations in Ukraine under the Convention but also to meet the political eligibility established by the Madrid criteria in the context of ensuring the necessary level of democracy and the rule of law of a candidate country. The inconsistency of Ukrainian policy on this issue with the deterioration of the situation with human rights provides the relevance of this study.

Ukrainian scholars, such as P. Pushkar, S. Chorna, and A. Romanova have conducted comparative studies of the implementation of ECtHR judgements in European countries, attention was also paid to the procedural aspects of such a process. This problem was brought up in the aspect of the subjectively unsuccessful Ukrainian judicial reform of 2016 (although subjective, this view is supported by the events of the so-called constitutional crisis in Ukraine of 2021 [3] and the President's statements about the urge to revive the reform [4]). However, the issue of ensuring an appropriate level of the rule of law and democracy in the framework of the implementation of the state's European integration course has been not given sufficient coverage.

In addition, the third nationwide survey “What Ukrainians Know and Think about Human Rights” [5] was conducted in 2020 to demonstrate how perceptions of human rights have changed in Ukraine over the past four years. The results of the survey confirm the demand and need of Ukrainians for human rights protection, but also give mixed results regarding their attitude toward the effectiveness of judicial protection, as the top 3 effective mechanisms include appealing to the media (23.3%, 2020), the ECtHR (19.6%, 2020) and state courts (20.9%, 2020).

Moreover, the consequences of the Constitutional crisis demonstrate that it is public attention and manual control of the situation (in violation of the established legal procedures) that is most effective. Thus, the established low level of confidence of the population with the failure to implement the rule of law negatively affects the state system, reduces its international credibility, and destabilises the mechanisms of engagement with the population, which has expressed unequivocal support for the new president and the government. However, it should be noted that the problems addressed in the article concern a prolonged process of deterioration of the situation and are not limited to the current formation of parliament or government, which does not negate its relevance in the absence of positive change.

The purpose of the study was to develop a set of principles and policies to be implemented in Ukraine to strengthen the rule of law (as a fundamental democratic institute), as an essential factor for ensuring human rights in the context of re-establishing a proper international cooperation with a key European institution in the field of human rights.

In contemporary legal science, certain theoretical and legal aspects of ensuring human rights and problems of establishing the due level of the rule of law in Ukraine have been addressed by S.V Bobrovnyk [6], P.M. Rabinovych [7], M.V Buromenskyi [8], M.I. Koziubra [9], VP. Kolisnyk [10], V.V. Lemak [11], S.V. Shevchuk [12], D.O. Vovk [13], O.R. Dashkovska [14], VS. Smorodynskyi [15], O.O. Uvarova

[16] and others. However, according to the analysis of the degree of coverage of the issue, the existing papers on the mentioned problem are rather described by point-by-point recommendations aimed at “damage control”, rather than at an in-depth resolution of the situation. Nonetheless, the theoretical developments and practical activities of the above authors, including work in the European Court of Human Rights, the Constitutional Court of Ukraine, formed the substantive and informational base of this study.

1. MATERIALS AND METHODS

The subject of the study was defined as the principle of the rule of law in its totality. In its framework, the features of the subject of research, i.e., the interaction of its elements: access to justice in independent and impartial courts and respect for human rights, determined its methodological basis, represented by the combination of methodological approaches, philosophical (attitudinal), general scientific and special scientific methods.

In particular, methodological approaches (phenomenological, hermeneutic, axiological, systemic) were applied in the process of scientific cognition of the nature, structure, and functional purpose of the state as the guarantor of human rights, and in their totality contributed to the definition of its role in the formation of an appropriate system of domestic protection and international interaction in this sphere. Philosophical methods formed the foundation of the study. The dialectical method was used in the process of substantiation of the stages of development of ideas and concepts of human rights in independent Ukraine, as well as the corresponding legislative consolidation; the idealistic method provided the formation of the idea of the importance of generally recognised legal ideas and concepts of human rights in modern democratic states; axiological method provided the characterisation of the studied categories as political and legal values.

Using the historical-legal method, the authors suggested a periodisation of the history of the formation of the modern system of judicial protection of human rights in Ukraine; using the formal-logical method, the authors summarised doctrinal approaches to the understanding of ideas, theories, concepts in the sphere of human rights protection and clarified their content; the systematic and functional method was applied to clarify the functional purpose of intrastate judicial mechanisms of human rights protection and European Court of Human Rights involvement; the prognostic method allowed accumulating recommendations to improve the situation or, in the worst case, to halt the process of aggravation of the problem. The preparation of this study involved a research on contemporary articles of Ukrainian scientists on related issues, monographic publications, international agreements, legal opinions of the European Court of Human Rights on relevant cases, as well as official communiques of the Council of Europe's institutions on the subject matter. Additionally, the analysis of programmes and Action Plans of the Ukrainian government and the operations of the Government Commissioner for the European Court of Human Rights in Ukraine was conducted, modern research of public opinion on ensuring human rights and their protection was addressed, a scientific assessment of current developments in the functioning of the Ukrainian judicial system was carried out.

2. RESULTS AND DISCUSSION

Proceeding from the position of the authors of this study, it is important to view the ECtHR judgement not as a penalty for the state (as opposed to the practice of the Russian Federation), but as an indication of how systemic problems that exist in states and consequently have an impact on the overall level of human rights enforcement should be resolved. That is why the implementation of a judgement in most cases virtually does not require enforcement procedures in European countries, since such enforcement directly affects interstate political relations. In her turn, N.Ye. Blazhivska notes that detailed regulation of the procedure of execution of ECtHR judgements in Western European countries is usually not required in practice, since a sufficiently high level of legal and political culture in the respective states (for instance, Germany and Austria) creates the necessary basis for the states' unconditional execution of ECtHR judgements without the need to apply coercive legal mechanisms and procedures [17, p. 84]. It does not, however, bring up the general level of the rule of law, without which the sole existence of any legislative procedure is incapable of such enforcement.

In December 2020 a hearing of the Legal Policy Committee was held in the framework of the Verkhovna Rada of Ukraine, where the problems of implementation of ECtHR judgements by Ukraine were addressed. In particular, the Head of the Department for Enforcement of Judgements of the European Court of Human Rights drew attention to the fact that the institutional system of reaction to the ECtHR judgements is built on the ideas of the 2006 law Law of Ukraine No. 3477-IV “On the Implementation of Judgements and the Application of the Practice of the European Court of Human Rights”. (2006, February). Retrieved from https://zakon.rada.gov.ua/laws/show/3477-15#Text., so the application of the ECtHR practice in modern conditions and, given the modern challenges, virtually no longer operates. The main systemic and structural problems, which should be dealt with through measures of a general nature, have not been resolved over a long period of time. This, in fact, blocks the implementation of individual measures. The result of the session was the development of legislative initiatives and changes aimed at solving the issue. This is not effectively a solution to the problem at hand, because the existence of statutory regulation is often levelled by the impossibility or problematic nature of its enforcement in practice.

It is necessary to take into account the context of the current situation. For Ukraine, an important event was the ratification of Protocol 14 to the Convention Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention. (2004, May). Retrieved from https://zakon.rada.gov.ua/laws/show/994_527#Text. containing a new provision (Article 16 amending Article 46 of the ECHR), according to which the role of the Committee of Ministers of the Council of Europe in the field of monitoring the implementation of ECtHR decisions has increased. Now, if the Committee considers that a participating State is refusing to comply with a final judgement in a case to which it is a party, it may address the ECtHR with the question of that State's compliance with its obligation. If the Court finds such a violation, it will refer the case to the Committee for the purpose of determining the measures to be taken. These may be political sanctions, such as loss of voting rights or termination of membership. In the current political situation, engaging in negative relations with an established international organisation in the field of human rights protection will not play into Ukraine's hands, especially taking into account the fact that the Council of Europe has already had the experience of applying harsh restrictive measures against the Russian Federation (without taking into account their effectiveness and consequences).

In order to better understand the problem that has arisen around the provision of human rights in Ukraine, it is necessary to proceed from the periodisation of the constitutional regulation of human rights, which has been developed by us in the publication “Reforming Ukraine: Problems of Constitutional Regulation and Implementation of Human Rights” [18, p. 70]. Conclusions of the mentioned article laid the foundation for the current study, as partially revealed the problem of non-implementation of constitutional provisions and norms of legislation, bringing forward as causes the problems of low level of legal culture, low level of the rule of law, and a number of economic difficulties in the state. Operating within the framework of the rule of law, it is necessary to highlight a number of major challenges, the failure to address which has led to the current situation around the implementation of the ECtHR judgements and the enforcement of human rights in Ukraine in general.

Firstly, the statutory consolidation fails to catch up with the public demand for the regulation of the corresponding relations. Within the established legal system, which implies preventive regulation of possible situations, this approach directly hinders Ukraine's development as a democratic European state, reduces its international credibility, and diminishes its European integration prospects. In addition, an important aspect of this problem lies in the lack of will or the deliberate blocking of legislative initiatives by the current political elites in pursuit of their interests. Despite the economic nature of such an impact, it cannot but affect the overall level of the rule of law in the country, and only time and a renewal of the elites can solve this problem.

Secondly, the lack of tangible guarantees of protection and restoration of violated rights within the state. This problem is multidimensional by nature. Acclaimed scholars A.M. Kolodii and O.V. Batanov through public speaking at scientific events have attributed to this issue not only the problems of formation of a capable judicial system, corruption, economic factors, but also a sociocultural element, which is manifested in the relatively young nature of Ukraine as an independent state, as well as in a certain “Soviet legacy”. Perfectly understanding the consequences of the prioritisation of the state over a person and his/her rights, the collective over the individual within the Soviet Union, as well as the situation in which a large layer of civil legal relations was effectively prohibited, it should be noted that several post-Soviet states in the Baltic region have demonstrated by example the dubiousness of such an argument (including in the context of interaction with the ECtHR).

Thirdly, the authors addressed the misunderstanding of international integration processes, and, as a consequence, the imperfect treatment of the implementation of international obligations in Ukraine. Based on the above opinion of the authors, it is necessary to emphasise the lack of understanding by the leaders of the state of the seriousness of the problem and the need for a rapid response to the situation. Voluntarily assumed obligations to ensure human rights and taking measures to eliminate systematic violations should be motivated not only by maintaining the image of a democratic state but by a direct manifestation of the will of responsible persons by taking actions aimed primarily at solving the critical situation around human rights that has formed in Ukraine. The decline in human rights that was outlined in the introduction to this article has permeated all political processes in Ukraine for more than a decade, regardless of the present political agenda or the leading political forces.

Thus, there are grounds to assume that the problem is more profound and is not solely the result of the negative impact of the described systemic problems, new challenges, economic difficulties, and international conflicts. Therefore, the purpose of this study was determined by the need to demonstrate the role of the rule of law as the foundation of state-building in general. At the same time, it is necessary to note the flipside of the process, i.e., the actual impact of the established course on the decline of the rule of law.

Consequently, by combining the above issues, one key can be singled out - inconsistency. Despite the slightly different context of the study, to argue this point, it is worth quoting Dr. Cristina Gherasimov and Dr. Iryna So- lonenko in their 2020 paper “Rule of Law Reform after Zelenskyi's First Year”, - “reforming the rule of law is a complex endeavour that needs to be backed by bold political leadership and strong administrative capacity. For such reforms to consolidate, it takes decades, multiple governments, coordinated effort, and a widespread pro-reform consensus among major stakeholders” [19]. Unfortunately, the historical and political process in Ukraine is described by a high level of inconsistency in actions and reforms. The 2000s constitutional amendments alone demonstrate the motives behind such changes, which were far from advancing the course of reforms, but rather were aimed at redistributing powers and spheres of influence. Subsequently, the establishment of a European integration course and the contraction of cooperation with the Russian Federation (and the CIS in general), laid the general appropriate course of development, however, with a number of national peculiarities.

The reforms of the previous administration (20142019) were partially sustained by the current administration, which indicates a certain continuity, but still insufficient. For example, the most successful decentralisation reform, for the moment, has lost momentum, although, based on the above public survey, the population still does not see any connection between ensuring their rights and the local self-government. The judicial reform as such was found to be unsuccessful because part of its goal was to consolidate influence in this sphere, rather than to improve its overall state (which led to the blocking of the work of a number of important state institutions and the inability to ensure the proper functioning of the system itself). Police reform has shown a certain level of effectiveness due in large part to the involvement of international partners. Despite the relative success of the latter, it is the consequences of its continuation in the context of consistency that determine its outcome.

In many respects, the problem of inconsistent operation lies in the lack of understanding of the goal-setting, processes, and results of reforms. On the one hand, the authorities elected in democratic elections are primarily trying to strengthen their positions in order to guarantee their re-election. On the other hand, the Ukrainian people, partly saturated with the successful experience of other states in the globalised world, demonstrate insufficient awareness and are not always able to properly assess the established course and ongoing reforms. Thus, by pursuing political goals by eroding the existing level of the rule of law, decision-makers form the rejection of reforms and changes by the population, which leads to a rapid loss of trust and support, resulting in a radical change of course by electing new representatives through the next democratic elections.

Following upon this thesis, two key points can be formed - stability and accountability. Both of these should be the basis for establishing the proper level of the rule of law, and their absence has a negative impact on it. After all, according to the natural law theory, the rule of law requires that all regulations (including the Constitution and laws) and all activities of state power are devoted to the protection of human dignity, freedom, and rights. In this context, the problem of the so-called “Soviet legacy” is nevertheless traceable. When, on the one hand, the population does not feel responsible for their elected representatives and, on the other hand, the representatives do not feel any consequences for the decisions made within their cadence. Thus, the authors argue their thesis regarding the necessity of ensuring stability, which is ensured by the rule of law. Creating a proper system for the functioning of the state must ensure consistency by imposing limits and accountability on decision-makers, and must, among other things, create awareness among the population of the importance of their votes.

Thus, today the Ukrainian society faces a situation of consistent weakening of the processes of state-legal regulation in all spheres, which leads to the deterioration of the state of human rights protection and enforcement, which manifests itself, among other things, through the failure to perform international obligations regarding the implementation of the decisions of the European Court of Human Rights. Arguing that the problem is more complex, and one that is directly related to the mutual process of influence of the reduction of the level of the rule of law on the general state processes (non-execution of the social function of the state as the guarantor of human rights), including in their international manifestation (non-implementation of ECHR decisions), conclusions of this article will focus on more tangible and palpable measures aimed to solve the specific problem, in order to avoid going beyond the subject of research.

CONCLUSIONS

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