Resolution CM/ ResDH (2018)232 Execution of the judgments of the European Court of Human Rights Three cases against Ukraine

(Adopted by the Committee of Ministers on 7 June 2018 at the 1318 th meeting of the Ministers’ Deputies)

Application No.

Case

Judgment of

Final on

65518/01

SALOV

06/09/2005

06/12/2005

33949/02

BELUKHA

09/11/06

09/03/2007

76556/01+

FELDMAN

08/04/2010

04/10/2010

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established;

Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the information provided by the government indicating the measures adopted to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see Appendix) ;

Having noted further that following the reopening of the impugned proceedings, where requested, the applicants’ cases were reviewed by impartial and independent courts; and that, where required, all individual measures were taken in response to the other violations established by the Court in some of these cases;

Having noted the legislative, institutional and practical measures undertaken related to the reform of the system of judicial discipline and careers of judges as examined within the Oleksandr Volkov group;

Recalling that the Committee will assess the impact of these measures and will continue to examine the outstanding issues within the framework of the Oleksandr Volkov group; the issues pertaining to violations of Article 5 found by the Court in the Salov and Feldman cases will continue to be examined within the framework of the Ignatov group (Application No. 40583/15 ); the issues pertaining to violation of Article 10 found by the Court in the Salov case will continue to be examined within the framework of the Marchenko case (Application No. 4063/04 ) and that the closure of these cases therefore in no way prejudges the Committee’s evaluation of the remaining general measures;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases as regards the individual measures and and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH ( 2018)232

Information about the measures to comply with the judgment in the Salov group of cases against the Ukraine

Introductory case summary

The cases of the Salov group concern violations of the applicants’ right to a fair trial (Article 6, paragraph 1), in particular due to the lack of impartiality and/or independence of the courts hearing their cases.

In the Salov judgment, the Court based its relevant findings primarily on the excessively wide powers of the presidiums of the regional courts, referring in particular to the “lack of clear criteria and procedures in domestic law concerning the promotion, disciplinary liability, appraisal and career development of judges or limits to the discretionary powers vested in the presidents of the higher courts” (§ 83), as well as “the binding nature of the instructions given by the presidium of regional courts...” (§ 86).

In the Belukha case, the impartiality of the court was tainted by the judge demanding and accepting assets from the defendant company (§ 54).

In the Feldman case, the violation of the principle of independence and impartiality was found due to the statements made by the state authorities, including the country’s President, in respect of the charges against the applicant; the unjustified change of territorial jurisdiction over the case; and actions taken by the authorities against the applicant’s lawyer.

The cases of the Salov group also concern other linked violations of the Convention and the Protocols thereto ( Salov : Article 5, paragraph 3, Article 10; Feldman : Article 5, paragraphs 1, 3 and 4).

Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage EUR

Non-pecuniary damage

Costs and expenses

Total EUR

Salov (No. 65518/01)

227.55

10,000

-

10,227.55

Belukha (No. 33949/02)

-

-

70

70Feldman (No. 76556/01)

-

8,000

-

8,000

The just satisfaction awarded by the Court in the above cases was paid in full within the deadlines.

b) Individual measures

Salov case

As regards the violation of Article 5, paragraph 3 , the applicant had already been released from pre-trial detention at the time of the Court’s judgment ( § 27 of the judgment ).

As regards the violations of Article 6, paragraph 1, and Article 10, following the request by the applicant, the domestic judicial decision on the applicant’s criminal conviction was quashed and the proceedings were terminated due to the absence of corpus delicti .

The Court awarded just satisfaction in respect of non-pecuniary damage suffered by the applicant resulting from not being brought promptly before a judge to review the lawfulness of his detention, from the lack of fairness of the proceedings in his case, and from his conviction and sentence for discussing politically sensitive information in the course of the elections ( § 122 of the judgment ) . The applicant then received additional compensation domestically, his status as an advocate was restored and there are no on-going negative consequences of his criminal conviction which has now been quashed.

Belukha case

Following the request by the applicant, the Supreme Court quashed the domestic judicial decision criticised by the European Court and remitted the case for a fresh examination. In the course of the new examination, the case was heard by a court in a different composition and thus not by the judge whose impartiality was questioned by the Court. The impartiality of the court in reviewing the applicant’s case is considered therefore to have been ensured.

Feldman case

As regards the violation of Article 5, the applicant is no longer in detention on remand due to his conviction on 19 April 2002 ( § 7 of the judgment in the case of Feldman No. 2 ).

As regards the violation of Article 6 § 1, the applicant did not avail himself of the possibility for reopening of the impugned proceedings.