Interim Resolution ResDH (2004)14

concerning the judgment of the European Court of Human Rights of 25 July 2002 (final on 6 November 2002) in the case of Sovtransavto Holding against Ukraine

(Adopted by the Committee of Ministers on 11 February 2004 at the 871st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights (“the Court”) of 25 July 2002 in the Sovtransavto Holding case transmitted to the Committee of Ministers once it had become final under Article 44 of the Convention;

Recalling that the case originated in an application (No. 48553/99) against Ukraine, lodged with the Court on 11 May 1999 under Article 34 of the Co n vention by Sovtransavto Holding , a Russian company, and that the Court declared admissible the complaints relating,

- first, to a violation of its right to a fair trial before an impartial and independent tribunal due to repeated attempts by the Ukrainian authorities, including the President of Ukraine, to influence the domestic court decisions, to the application of the " protest " procedure ("supervisory review procedure" – allowing the quashing of final judicial decisions without any limitations) and to the refusal by the courts to examine the applicant company’s arguments on the merits in a public hearing and to the absence of adequate motivation of the judicial decisions and

- secondly to a violation of the effective enjoyment of its right of property due to the manner in which these proceedings were conducted and ended, and to the uncertainty in which the applicant company was left;

Whereas in its judgment of 15 July 2002 the Court held:

- unanimously that there had been a violation of Article, 6 paragraph 1, of the Convention;

- by six votes to one that there had been a violation of Article 1 of Protocol 1 to the Convention;

- unanimously that it was not necessary to decide whether the applicant was a victim of discrimination on the basis of its nationality;

- unanimously that the question of application of Article 41 was not ready for decision, and consequently, reserved it and postponed it for a later stage;

Stressing the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court;

Recalling that this obligation implies the adoption of individual measures putting an end to the violations found and removing as far as possible their effects for the applicant, as well as general measures preventing new violations of the Convention similar to those found in the Court's judgments including, where appropriate, making available effective domestic remedies pending the entry into effect of the necessary changes;

Stressing that the adoption of general measures is particularly pressing in cases where a judgment reveals structural problems which may give rise to a large number of new, similar violations of the Convention;

Having invited Ukraine to inform it of the measures adopted or being taken in consequence of the judgment in this case;

Having examined the information provided by the Ukrainian authorities concerning the measures adopted or being planned to abide by the judgment (as it appears in the Appendix to this resolution);

Noting with interest, as regards the applicant company’s situation, that on 19 August 2003 the Ukrainian Supreme Court ordered the reopening of the impugned proceedings and emphasising the need to guarantee that these new proceedings are conducted in full respect of the Convention and of the case-law of the European Court in this case;

Noting also that European Court, on 2 October 2003, delivered its judgment under Article 41 on just satisfaction, which will become final in accordance with the terms of Article 44, paragraph 2 of the Convention;

Welcoming, as regards the general measures, the fact that, prior to the Court's judgment, the procedure for supervisory review ( protest ), which was one of the main structural problems at the basis of the violations found, was abolished through a comprehensive judicial reform of 21 June 2001 and stressing the importance of ensuring that prosecutors do not retain powers similar to that of “protest” in civil cases under other legal provisions;

Further welcoming the reforms adopted in 2002 aimed at reinforcing the independence of the judiciary's, in particular the establishment of the State Judicial Administration and the new arrangements by which the courts are financed from the central state budget instead of from the budgets of local authorities;

Welcoming the order made by the President of Ukraine on 12 July 2003 aiming at ensuring the unconditional implementation of all legal norms, including the Convention, protecting the independence of the judiciary, the adoption of any further legislation deemed necessary for this purpose and the enhancement of training measures in co-operation with the Council of Europe and the European Union to ensure that the administration of justice conforms with the legislation in force and international law, including the Convention;

Stressing the importance of rapid and efficient action to give effect to this order so as to ward off attempts to influence the administration of justice, and to ensure that adequate sanctions are imposed on the authors of any such attempts and other appropriate measures are taken to enhance the independence of the judiciary;

Emphasising in this connection the responsibility of the authorities to provide adequate training and awareness-raising, not least concerning the case-law of the European Court, for judges, prosecutors and other public officials;

Noting the importance of the training of Ukrainian judges in particular on the Convention conducted within the Joint Programme of co-operation between the European Commission and the Council of Europe to strengthen democratic stability in Ukraine;

Noting with interest the establishment by the Decree of the President of Ukraine of October 2002 of the Judges’ Academy of Ukraine the main task of which is the initial and in-service training of judges including training courses on the Convention;

Welcoming the practice of publishing of the European Court’s judgements, including the judgment in the present case, in Ukrainian in the Official Journal and in the Bulletin of the Ministry of Justice of Ukraine;

ENCOURAGES the Ukrainian authorities rapidly to ensure that the necessary measures are taken to guarantee that each and every state authority fully respects the independence of the judiciary, in particular by ensuring:

- that effective sanctions are imposed on officials who in any way interfere, or attempt to interfere, with pending court proceedings;

- that all necessary measures to implement the President’s order of 12 July 2003 are taken so as to guarantee the respect of the Constitution and the Convention;

- that it is no longer possible for public prosecutors to question the final character of court judgments in civil cases;

CALLS ON the competent authorities to continue the training on the Convention, including the case-law of the European Court, during the initial and in-service training of judges and prosecutors and to ensure that the latter have ready access to such case-law;

ENCOURAGES the further development of the training of Ukrainian judges, in particular in co ‑ operation with the Council of Europe institutions;

URGES the Ukrainian authorities to ensure the wide dissemination of the present resolution in Ukrainian translation to the Government ministries, General prosecutor’s office, local authorities and courts;

EXPECTS to receive further information soon on additional measures planned to execute the judgment in this case and,

DECIDES to continue the examination of the case until the judgment has been fully executed.

Appendix to Interim Resolution ResDH (2004)14

Information provided by the Government of Ukraine during the examination of the Sovtransavto Holding case by the Committee of Ministers

As regards individual measures

The applicant company’s request for reopening of the impugned proceedings with a view to obtaining redress for the violations of the Convention was granted by the Supreme Court on 19 August 2003. The case was referred to the court of first instance for a new hearing (the Economic Court of Lougansk , former “arbitration court”). The outcome of these proceedings is awaited.

As regards general measures

The following general measures have so far been taken by the Ukrainian authorities:

- the procedure for supervisory review ( protest ) was abolished in Ukrainian law by the judicial reform of 21 June 2001;

- the Law on the Judiciary, adopted in February 2002, sets up the State Judicial Administration, which is a specialised institution, independent from the executive, responsible for organising the management of the national judiciary; the law also provides that all Ukrainian courts are henceforth financed from the central budget and that the budget assigned to the courts is administered by the country's supreme courts;

- in order to give effect to the judgment, the President of Ukraine, on 12 July 2003, instructed:

- on 26 August 2003, the Cabinet of Ministers ordered ministries and other central or regional bodies having executive power in Ukraine to take all necessary measures to implement the President’s above-mentioned order;

- as a result of systematic training of Ukrainian judges between 2001 and 2003 in the framework of the Council of Europe/European Commission Joint Programme (consisting of one-day training on the Convention for all judges, two “train-the-trainers” seminars in Kiev, and 73 seminars in different regions of Ukraine), domestic courts apply the Convention and the case-law of the European Court more frequently (as evidenced by a number of decisions notably from the Constitutional Court -  decision n°9-zp of 25/12/97, dec . n°6-rp/99 of 24/06/99, dec . n°11-rp/99 of 29/12/99, opinion n°2-v/2000 of 11/07/00, dec . n°11-rp/2000 of 18/10/00, dec . n°13-rp/2001 of 10/10/01 and dec . n°15-rp/2001 of 14/11/01).

- the European Court's judgment was translated and published in the Official Journal of Ukraine, issue n°44/2003, in the Bulletin of the Ministry of Justice, issue n°9/2003, on the Ministry of Justice Internet site www.mi n just.gov.ua and in the journal Case-law of the ECHR, issue n°3/2002 and has been sent out to the authorities directly concerned, i.e. to the Supreme Court and the Supreme Commercial Court of Ukraine (letters of the Ministry of Justice of Ukraine of 6 August 2002, n° 44-5/793 and 44-5/794) and to the Government ministries, General prosecutor’s office, local authorities and courts.

The Ukrainian Government stresses Ukraine’s commitment to abide fully by the European Court's judgment in this, as indeed in all other cases, and the authorities will pursue the adoption of the measures required to prevent new similar violations of the Convention. In this connection, the Government, in particular, encourages the courts, prosecutors and other authorities to develop further the direct effect of the Convention and of the judgments of the European Court.