By Eline Kindt, PhD researcher Human Rights Centre – Ghent University
The recent Burmych and others v. Ukraine judgment of the ECtHR of 12 October 2017 has thoroughly shifted the institutional balance in the Council of Europe between the Court and the Committee of Ministers. The Court decided to pull itself away from a situation of mass non-execution by Ukraine of both its own national judgments, as well as the Court’s previous pilot judgment of Yuriy Nikolayevich Ivanov v. Ukraine. The Court decided that these cases would be struck out of its list and become the responsibility of the Committee of Ministers, thus leaving thousands of victims without the possibility to bring their case before the Court.
The Ivanov pilot judgment and Ukraine’s problem of non-execution of judgments
Ukraine has been a high case-count state for over a decade and is currently the state with the most applications pending before the ECtHR. The reason behind these statistics is Ukraine’s systemic problem of non-execution of national judgments which clearly violate article 13 of the ECHR
The first application in this sense reached the Court in 1999, which led to the judgment in Kaysin and others v. Ukraine in 2001. The case, which was coincidentally not the first judgment against Ukraine, concerned the applicants’ right to a disability pension which was not paid by their employer, a partly state-owned mining company. The case was solved by friendly settlement and the involved applicants received their compensation. The underlying issues however were not dealt with, leading to a constant influx of similar cases.
As a result, the Court decided in 2009 to render a pilot judgment concerning the issue of non-enforcement of final court decisions in Ukraine. The pilot judgment procedure was specifically created for these kinds of issues: structural problems in a certain state leading to large groups of quasi-identical cases being brought to the Court. The Court had noticed in the early 2000s that its growing case-load consisted of a large number of these repetitive cases. The pilot judgment procedure was thus created as a means to tackle its ever increasing backlog. In applying the procedure, the Court chooses a case or a combination of cases which are exemplary of the issue at hand and diagnoses the underlying problem in its judgment. It further explains to the state how to solve the situation and orders it to take the necessary general measures in the operative part of the judgment, thereby creating a binding obligation upon the state to actually solve the problem. Generally, similar pending cases are stayed with the aim of sending them back to be solved domestically once the involved state has implemented the requested general measures.
With respect to the situation in Ukraine, the Court chose the case of Yuriy Nikolayevich Ivanov, who had not been paid the lump-sum pension to which he was entitled after his retirement from the Ukrainian Army. The Court explained that more than half of its judgments against Ukraine between 2004 and 2009 had concerned non-enforcement of final decisions, and that at that moment 1400 similar cases were pending. However, despite this constant case-law on the issue, the problems at domestic level had subsisted. Furthermore, there further was no effective remedy available to complain about this domestically. The Court stressed that this situation would require complex general measures which needed to be designed under the supervision of the Committee of Ministers, the body having the competence to oversee the execution of the Court’s judgments. Similar pending cases were adjourned for a period of one year, giving Ukraine time to settle and grant redress to the applicants of these cases, to create a domestic remedy to deal with potential victims still involved in proceedings in Ukraine and to organize the necessary reforms at the domestic level. The Court lamented that Ukraine had shown an almost complete reluctance to resolve the issue and subsequently warned that it would be forced to re-open examination of these pending cases if Ukraine failed to take the necessary measures.
As feared, the Ukrainian government failed to execute the Ivanov judgment. The government first requested an extension of the one-year time limit which was granted by the Court. The second extension was refused and the Court resumed the examination of pending cases. It further adopted a policy of awarding fixed-rate sums for pecuniary and non-pecuniary damage and the government was invited to submit grouped unilateral declarations, which it did. Unfortunately, the Court later received complaints from applicants whose cases had been processed through these unilateral declarations, or on which the Court had already rendered a judgment that Ukraine had again not honoured its obligation. The problem had thus still not been solved and had grown into a major obstacle for the Court’s future functioning: since 2004 the Court had received 29 000 similar applications, of which 12 143 were still pending on 12 October 2017.
Burmych and others v. Ukraine: the Court’s judgment
This clear failure of the above approach in the Ivanov pilot judgment and the resulting stream of similarly situated victims turning to Strasbourg triggered the Court to address the situation in the Burmych case. The Court recognized that it would have to employ a new approach, in line with the principle of subsidiarity underpinning the Convention. The Court specifically asked itself whether it should act as a mechanism for awarding compensation to each and every applicant of repetitive applications which follow pilots. It explained that the dual purpose of the pilot judgment procedure is to reduce on the one hand the threat to the effective functioning of the Convention system and on the other hand to solve the underlying issue domestically, including affording redress to all actual and potential victims. The role of the Court is here to identify the systemic problem and to indicate the required general measures. The Committee of Ministers on the other hand supervises the observance of these general measures by the State. As the obligation to grant relief to victims in follow-up cases is encompassed in these general measures, the Court argued that this needs to be addressed in the framework of the execution proceedings.
This last point is then used by the Court to argue that the failure to execute the Ivanov pilot judgment case should not be its responsibility anymore. The Court concluded, bearing in mind that it has been dealing with these cases for sixteen years, that there is nothing to gain nor will justice be served if it continues to find violation after violation in a series of comparable cases. The Court then examined its role under article 46 of the Convention and decided that it does not extend to ensuring the implementation of its own judgments. This is the responsibility of the Committee of Ministers. As execution is the central point here and the problems are essentially of a financial and political nature, the Court decided that the non-execution of the Ivanov pilot case is now the responsibility of the Committee of Ministers. All similar pending applications were struck out from the Court’s list and absorbed in the Committee of Minister’s execution process of the Ivanov case. The Court however reserved the right to re-open the cases if the circumstances justify it. To this end, the Court envisaged to reassess the situation within two years of the delivery of the Burmych judgment in order to consider whether such circumstances exist such as to justify a re-opening of cases.
The joint dissenting opinion of judges Yudkivska, Sajó, Bianku, Karakaş, De Gaetano, Laffranque and Motoc
There must have been a weighty and heated discussion about the best course to take in this situation. The judgment was rendered by ten votes to seven. Furthermore, the joint dissenting opinion of the seven minority judges, including the Ukrainian judge, is particularly strong-worded against the majority reasoning. The judges contend that this Burmych judgment has nothing to do with the legal interpretation of human rights. Instead it is a decision of judicial policy that shifts the well-established institutional balance within the Council of Europe to the detriment of the victims involved.
Their dissent is heavily written from the victim’s viewpoint. The dissenters argue that the Convention requires each application to be given an individual judicial assessment and that no victim is to be regarded by the Court as ‘a burden’. Otherwise, the right to individual application, the cornerstone of the European Human Rights system, will be facing a serious challenge.
Furthermore, they argue that the Court simply accepts that there is no solution and in order to release itself from the burden, it passes the buck to the Committee of Ministers. Interestingly, the dissenters clarify that the Committee of Ministers was not consulted concerning this new division of powers. This does not necessarily show a constructive dialogue between the two bodies. Moreover, they stress that the Committee of Ministers is a political body. Consequently, these strike-out decisions now determine the human rights claim of these victims will not happen by a judicial body, but will be dealt with in a political context. Instead of a binding judicial decision, this political process merely leads to a non-enforceable decision of a political body where the involved state is part of the decision-making process.
Lastly, the dissenters warn that the present solution has the perverse result of encouraging members states not to introduce general measures where a structural problem has been found to exist. Nothing will happen with these cases for at least the next two years. It is not tangible that the solution to a problem which has persisted for over sixteen years will be found at the Committee of Ministers within these two years. The Court is thus postponing having to deal with the issue again and in the meantime, the applicants will not be heard nor will they receive a binding judicial decision. The pressure on the state is off. The judgment is in fact rewarding non-compliance.
Procedural efficiency at the expense of victims’ right to access
From the very beginning of pilot judgments, the Court has emphasized that the procedure was created in order to deal with the high numbers of incoming identical cases. It was thus meant as a managerial tool for the Court. In its judgments the Court has further emphasized the principle of subsidiarity, hinting towards the idea that the pilot procedure was also intended as a means to induce states to take up their roles as the primary responsible actors in protecting human rights.
The critique since its inception has however been that the procedure is detrimental to the involved applicants’ right to individual petition, by making it possible that similarly situated applicants’ cases are kept pending and sent back without being heard by the Court in case of a domestic solution. The Court has argued that these two interests are not mutually exclusive and answered these critiques by claiming that the pilot judgment procedure served a dual purpose: not only to provide an efficient way of doing away with bulk cases, but also a way to offer the most speedy redress to the victims involved. The fact that states’ willingness to cooperate is crucial to the success of a pilot however, was not explicitly mentioned. With the Burmych judgment, the importance of state cooperation has become painfully clear and the Court has chosen which interests prevail when states are reluctant to do their part in protecting the Convention’s rights. The right to individual petition is not a factor in the proceedings before the Committee of Ministers, applicants are not given the opportunity to submit information concerning their claim, only with respect to the payment of just satisfaction by the state (Rule 9 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements). Under the guise of judicial efficiency, applicants are absorbed into the bigger picture and with that, their individual interests are apparently washed away.
Furthermore, the argument of the Court that it has no role to play when states are reluctant to execute its judgments is incorrect. As the dissenters also argue, the Court seems to have forgotten that Protocol 14 has introduced paragraph 4 in article 46, enabling the Committee of Ministers to decide by a two thirds majority to directly bring a claim before the Court against a State which is refusing to abide by a previous judgment. The Court then has the competence to decide whether the state has failed to fulfil its obligation to execute the judgment. In case of a violation, the case then indeed will be sent back to the Committee of Ministers for consideration of the appropriate measures to be taken. This is a ‘naming and shaming’ mechanism designed for the Committee and the Court to work together in case of a reluctant state with respect to a case which already received legal scrutiny and a determination on the merits. With the Burmych judgment, the Court has decided to send an enormous group of applicants whose cases have not yet received any legal determination to the Committee of Ministers, apparently without this body knowing about it. It seems that the Court has blind sighted both the Committee as well as the involved applicants, and it remains to be seen how the Committee will handle this hot potato.