Lexploria

Information Note on the Court’s case-law 211

October 2017

Burmych and Others v. Ukraine (striking out) [GC] - 46852/13, 47786/13, 54125/13 et al.

Judgment 12.10.2017 [GC]

Article 46

Pilot judgment

Division of responsibility between the Court and the Committee of Ministers following failure to execute a pilot judgment

Article 37

Article 37-1

Striking out applications

Continued examination of cases or iginating in systemic problem identified in Yuriy Nikolayevich Ivanov v. Ukraine : struck out

Facts – The first five applicants were part of a group of 12,143 similar applications pending before the Court. The cases originated in the same problem as had bee n identified in the pilot judgment of Yuriy Nikolayevich Ivanov v. Ukraine (40450/04, 15 October 2009, Information Note 123 ), namely a systemic problem of non-enforcement or delayed enforcement of do mestic court decisions, combined with the absence of effective domestic remedies in respect of such shortcomings.

Law

Article 46

(a) Preliminary considerations – At the heart of the applications lay the division of competence established by the Convention between, on the one hand, the Court, whose function it was to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Conve ntion and the Protocols thereto” and, on the other, the Committee of Ministers whose function it was to supervise the execution of the final judgments of the Court.

The understanding of that division of responsibility had evolved in the light of the Court ’s case-law and notably the proliferation of structural and systemic violations of the Convention. The introduction of the pilot-judgment procedure by the Court had been designed to deal with the phenomenon of repetitive cases arising from such violations. It had now become necessary for the Court to clarify where the responsibilities lay in addressing issues arising out of a failure to execute a pilot judgment.

Despite the significant lapse of time since the delivery of the Ivanov pilot judgment in October 2009, the Ukrainian Government had failed to implement the requisite general measures capable of addressing the root causes of the systemic problem and to provide an effective remedy securing redress to all victims at national level. The continued failure to take appropriate general measures had led the Court to adopt a practice of dealing with the Ivanov follow-up cases in an accelerated, simplified summary procedure for grouped judgments and strike-out decisions, essentially limited to a statement of a v iolation and award of just satisfaction. However, that had not had any meaningful impact on the overall systemic problem, nor had it resulted in any apparent progress in the execution process.

Since the introduction of the first applications in 1999 the Co urt had received some 29,000 Ivanov -type applications, of which 14,430 had been examined by various judicial formations of the Court. However, 12,143 of those applications, the majority of which were lodged in the years 2013-2017, were still awaiting judic ial examination. According to data presented by the Government to the Committee of Ministers, the number of persons with unenforced judicial decisions in Ukraine stood at some 120,000.

If the Court examined the present cases and all the other follow up ca ses in the same or a similar manner, it would face the inevitable prospect that growing numbers of applicants in Ukraine would turn to it for redress in the future. The Court ran the risk of operating as part of the Ukrainian legal enforcement system and s ubstituting itself for the Ukrainian authorities. That task was not compatible with the subsidiary role which the Court was supposed to play under Articles 1 and 19, and ran directly counter to the logic of the pilot-judgment procedure developed by the Cou rt. The Court had to therefore consider how the situation could best be addressed in a way which respected the rationale of the pilot-judgment procedure, in accordance with the principle of subsidiarity underpinning that rationale. In particular, it had to examine whether it should act as a mechanism for awarding compensation in respect of the large numbers of repetitive applications which followed pilot or leading judgments whose execution was to be supervised by the Committee of Ministers.

(b) The object and purpose of the pilot judgment procedure – The pilot-judgment procedure had been conceived as a response to the growth in the Court’s caseload, caused by a series of cases deriving from the same structural or systemic dysfunction, and to ensure the lon g-term effectiveness of the Convention machinery. The dual purpose of the procedure was, on the one hand, to reduce the threat to the effective functioning of the Convention system and, on the other, to facilitate the most speedy and effective resolution o f a dysfunction affecting the protection of Convention rights in the national legal order. By incorporating into the process of execution of the pilot judgment the interests of all other existing or potential victims of the systemic problem identified, the procedure aimed to afford proper relief to all actual and potential victims of that dysfunction, as well as to the particular applicant in the pilot case.

The Ivanov pilot judgment had clearly not succeeded in achieving that aim. Post- Ivanov cases accoun ted for almost one third of all the repetitive applications pending before the Court and the volume of cases had continued to grow despite the measures taken and guidance given. Nothing was to be gained, nor would justice be best served, by the Court’s rep etition of its findings in a lengthy series of comparable cases, which would place a significant burden on its own resources, with a consequent impact on its considerable caseload. Only a lasting solution to the root cause of the problem adopted in the exe cution process could provide an adequate response to the present situation.

(c) Whether it was justified to continue examination of Ivanov -type applications having regard to Articles 19 and 46 of the Convention – A requirement to continually deliver indiv idual decisions in cases where there was no longer any live Convention issue could not be said to be compatible with the Court’s principle task under Article 19. Nor did that judicial exercise contribute usefully or in any meaningful way to the strengtheni ng of human rights protection under the Convention. The time had come for the Court to redefine its role in circumstances where the respondent State had failed to take general remedial measures within a reasonable time and the consequences that should be d rawn from that in the light of Article 46 of the Convention.

The division of tasks between the Court and the Committee of Ministers was clear – the Court could assist the respondent State in fulfilling its obligations under Article 46 by seeking to indicat e the type of measure that might be taken by the State in order to put an end to a systemic problem identified. However, it was for the Committee of Ministers to supervise the execution of the judgment and ensure that the State had discharged its legal obl igation under Article 46, including the taking of such general remedial measures as may be required by the pilot judgment in relation to affording relief to all the other victims, existing or potential, of the systemic defect found.

The situation faced by the Court in the Ivanov -type cases in essence derived from an ineffective execution of the Court’s final judgment, requiring the adoption of general measures under the supervision of the Committee of Ministers in order to eliminate the root cause of a syst emic problem which was continually generating numerous applications to the Court. The problems involved were fundamentally of a financial and political nature and their resolution lay outside the Court’s competence under the Convention. It was incumbent on the respondent State and the Committee of Ministers to ensure that the Court’s Ivanov pilot judgment was fully implemented and that, in addition to the necessary general measures addressing the root cause of the problem, individual applicants were provide d with appropriate relief at domestic level, including a scheme offering redress for the Convention violation identified by the Court that would serve the same function as an award under Article 41 of the Convention.

(d) Conclusion – The legal issues under the Convention concerning prolonged non enforcement of domestic decisions in Ukraine had already been resolved in the Ivanov pilot judgment. The Court had thereby discharged its function under Article 19 of the Convention. The present case and all similar 12,143 cases pending before the Court, as well as any similar future cases to be submitted to it, were part and parcel of the process of execution of the pilot judgment. Their resolution, including individual measures of redress, had to be encompassed by the general measures of execution to be put in place by the respondent State under the supervision of the Committee of Ministers. Consequently, all such cases fell to be dealt with under the execution process and had to be notified to the Committee of Mini sters in its capacity as the body which, under the Convention system, had the responsibility to oversee redress and justice for all the victims affected by the systemic problem found in a pilot judgment.

Having regard to the respective competences of the C ourt and the Committee of Ministers under Articles 19 and 46 of the Convention, the Court was forced to conclude that no useful purpose was served in terms of the Convention’s aims in its continuing to deal with these cases in accordance with the practice hitherto followed.

Article 37: The interests of the applicants and all other existing and potential victims of the systemic problem in question were more appropriately protected in the execution process. As such, the Convention aims were not best served b y continuing to deal with post- Ivanov cases and therefore, the continued examination of the case was not justified within the meaning of Article 37 § 1 (c).

The grievances raised in these applications had to be resolved in the context of the general measur es required by the execution of the Ivanov pilot judgment, including the provisions of appropriate and sufficient redress for the Convention violations found in that judgment, which measures were subject to the supervision of the Committee of Ministers. Ac cordingly, respect for human rights within the meaning of Article 37 § 1 in fine did not require such continued examination of the applications in question from the point of view of individual redress. Nor did the case raise important issues more generally concerning the duties to be observed by the Contracting States in that field, other than those already clarified in the different phases of the pilot-judgment procedure. On the contrary, the overall interest of the proper and effective functioning of the Convention system militated in favour of the approach as set out by the Court in these applications.

Conclusion : struck out (ten votes to seven).

(See, on the question of pilot judgments generally, Broniowski v. Poland [GC], 31443/96, 22 June 2004, Information Note 65 )

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