Burmych v. Ukraine two years later: What about restoral?

By Lize R. Glas, Assistant Professor of European law, Radboud University, the Netherlands

When the Court took the unprecedented decision to strike 12,143 repetitive cases out of its list in  Burmych and Others v. Ukraine on 12 October 2017, it added that it may reassess the situation within two years and restore the cases. As this date is approaching, this blog addresses the question whether the Court will and should restore these cases. For this purpose, I will outline what has happened in the execution process since Burmych, explain what restoration involves and discuss whether the principled and pragmatic reasons for striking out Burmych still apply and convince. This blog begins with a brief summary of the judgment and the events leading up to it.

The Court’s judgment and the events leading up to it

In 2001, the Court adopted its first judgment concerning the non-enforcement of final judgments in Ukraine. The Court has been confronted with the question of how it should deal with cases pertaining to the same problem ever since. One answer was the adoption of the Ivanov pilot judgment in 2009, which has become the worst example of non-execution of a pilot judgment ever. The Committee of Ministers (Committee) concluded in 2017 that Ukraine had made ‘no concrete progress’ to solve the problem.

During the years of non-execution, the Court has changed its approach to dealing with these cases several times. It granted the first request of Ukraine for an extension of the time limit set in the pilot judgment, but refused the second request. In Ivanov, the Court adjourned examining similar cases and then switched to resuming and adjourning examining these cases several times (see here, here and here). When the Court examined them, it first adopted a policy of awarding two fixed-rate sums for damage and then a policy of awarding one fixed-rate sum. Furthermore, the Court declared the Ivanov-type cases inadmissible at one point, because the applicants had not exhausted domestic remedies, but overturned this decision at a later date. Clearly, the Court has been struggling with the question of how to deal with the Ivanov-type cases.

The Court gave its latest answer in Burmych and Others v. Ukraine on 12 October 2017. It took the unprecedented decision to join all 12,143 pending Ivanov-type cases without examining them individually and to strike these potentially meritorious cases out of its list. Eline Kindt discussed this judgment elaborately in an earlier blog. For the purposes of the current blog, it suffices to know that the Court based itself on a pragmatic and a principled reason. The pragmatic reason is that continuing to deal with the applications would ‘affect the Court’s ability to fulfil its mission […] in relation to other meritorious applications’ and ‘would place a significant burden on its own resources’. The Court decided in the ‘general interest’ to strike cases out that did not raise a new legal question so it would be able to decide cases that do raise such a question ‘in good time’. The Court’s principled reason is that, when it would continue to decide the Ivanov-type applications, it would be engaged in three tasks that it should not fulfil and which will be outlined below.

The Court struck the cases out on the basis of Article 37(1)(c) ECHR. This provision empowers the Court to strike an application out if it is ‘no longer justified to continue the examination of the application’ ‘for any other reason’. Although the Court’s discretion to strike an application out on this basis is ‘wide’, it relied on this basis previously only when the applicant showed a lack of diligence or when his situation changed. The Court could only adopt its decision in Burmych by relying on this basis in a new way, because it could not dispose of the applications based on sub a or b of that provision or based on the admissibility criteria.[i] Article 37 ECHR also provides that the Court ‘may decide to restore an application to its list of cases if it considers that the circumstances justify such a course’. In Burmych, the Court referred to this possibility and envisaged that ‘it may be appropriate to reassess the situation within two years [i.e. in October 2019] with a view to considering whether in the meantime there have occurred circumstances such as to justify its exercising this power’.

Developments in the execution process

 In Burmych, the Court announced that it would strike future admissible Ivanov‑type applications out and transmit them directly to the Committee of Ministers. Single Judges have probably decided these cases, because they can strike a case out when this decision ‘can be taken without further examination’ (Article 27(1) ECHR). This is possible, because they can rely on Burmych. It is unclear how many applications the Court has transmitted, since the Court does not publish the Single-Judge decisions and HUDOC-EXEC does not mention this either. The few strike-out decisions that are published, reveal that the Court does not seem to establish the well-foundedness of an application before submitting it to the Committee (see e.g. here, here and here), although the Court stated in Burmych that it would transmit ‘well‑founded’ applications. The Court simply notes that a part of the application is a follow-up to Burmych and strikes that part out.

The Court’s decision in Burmych must have come as a surprise to the Committee, because the dissenters wrote that the Committee ‘was not at all consulted with a view to specifying the relevant mechanisms and arrangements for transferring thousands of undecided applications to them’. This may explain why it took the Committee almost a month to put an instruction online for the applicants. It instructs them to write to the Government Agent of Ukraine and announces that the Department for the Execution of Judgments of the Court will ‘not process communications relating to applications’. Therefore, transmitting the cases means just that; the Committee will not supervise the execution of these cases, although it supervises the execution of relevant general measures in the context of the pilot judgment.

Remarkably, the Committee has interpreted the Court’s rather vague statement (‘it may be appropriate to reassess the situation within two years’) as a deadline for the implementation of Burmych (see here and here). This is surprising, not only because the Court did not actually set a deadline, but also because the Court only decided that the applications fell to be dealt with in compliance with the obligation deriving from the pilot judgment and that they should be struck out. The Court did not find a violation of any Convention right. Therefore, its judgment did not give rise to the obligation to execute under Article 46(1) ECHR. Anyhow, by imposing a deadline, the Committee has directed some attention to the Court’s statement in Burmych, which may stimulate the Court to indeed reassess the situation in October of this year.

In its decision of 6 June 2019, the Committee noted that the Ukrainian authorities had not sufficiently addressed the indications of the Court and that they had failed to adopt a draft law, which ‘by itself is only an initial step for establishing a long lasting solution’. Additionally, it noted that, despite some promising domestic judgments, ‘a real comprehensive solution is still needed’. At that point, the authorities had enforced 1,350 judgments (out of the over 12,000 applications) and had paid 11 percent of the Burmych applicants. One problem that Ukraine has tackled is that there used to be a ‘persistent lack of a common vision at the domestic level of the root causes of the problem or the potential solutions’. Ukraine has ‘established the main types of reasons for the non-enforcement of judgments – legal, financial and institutional’, but it has not yet adopted ‘a comprehensive strategy’ to solve the problem. Therefore, although Ukraine set some steps towards executing the pilot judgment (see also here), much remains to be done and Ukraine will not have executed the pilot judgment to the Committee’s satisfaction in October.

The restoration of strike-out decisions

Article 37(2) ECHR provides that restoration to the list is possible if ‘the circumstances’ so justify. Rule 43(5) of Court specifies that this is possible in ‘exceptional circumstances’ and the Court has rarely used this power. As far as I am aware, the Court used this power once because a respondent State did not respect the terms of a friendly settlement, in about two hands full of cases because the State failed to execute a unilateral declaration and once because the State misled the applicant. Therefore, restoration is always a reaction to what the State has (not) done.

If the Court will restore the applications, it will probably deal with them in summary and grouped judgments or strike them out based on unilateral declarations or friendly settlements, so the applicants can obtain compensation. Whether the applicants indeed receive compensation, depends on Ukraine and is uncertain, as Ukraine allegedly failed to execute some unilateral declarations and judgments adopted in Ivanov-type cases in the past. Anyhow, the Court’s finding of a violation itself would provide some just satisfaction and it seems more likely that Ukraine takes action to provide compensation in response to a judgment or decision of the Court than that it will implement an effective domestic remedy any time soon. Therefore, restoral would be in the interest of the applicants.

 The question of restoring the Ivanov-type applications

As I already noted, the Court decided in Burmych that ‘it may be appropriate to reassess the situation […] with a view to considering whether in the meantime there have occurred circumstances such as to justify’ restoral. The Court did not elaborate on what these circumstances entail. Based on what I discussed above, restoration is a possibility, because the Court previously took restoral decisions in response to a failure of states to act and because Ukraine has failed to execute the pilot judgment in the meantime. Additionally, a majority of only ten (out of seventeen) Judges supported the decision. Considering that the Grand Chamber was divided and because the Court changed its approach to dealing with these applications several times in the past, as was recounted above, it is not completely unlikely that the Court will restore the applications.

At the same time however, it is hard to imagine that the Court will overturn its unprecedented decision only two years later, just because Ukraine failed to act, considering that the domestic problem knows a long history. Therefore, it was to be expected that the Ukrainian authorities would not solve the problem in two years. This is also hard to imagine, because the reasons on which the Court relied to decide Burmych still apply. As I mentioned above, the Court’s reasons for striking the cases out were in part pragmatic, relating to its high caseload and limited resources. These reasons still apply because its general caseload and caseload of repetitive cases is still substantial, albeit decreasing, and because its budget has decreased compared to 2017.[ii] Furthermore, there are no reasons why the Court’s principled reasons (see below) – if one accepts that they are convincing in the first place – no longer apply.

In short, while restoral is a possibility, it is not very likely that the Court will indeed restore the applications. A different matter is whether the Court should restore the applications. The answer to this question depends to a large extent on whether one was convinced by the Burmych judgment and on what is to be gained by restoral.

For an outsider, it is hard to assess exactly how severe the consequences would be for other applicants if the Court would restore the Ukrainian applications and, therefore, how convincing the pragmatic reason is. We do know that the Court had a quite effective system in place for dealing with the applications (the expedited Committee procedure). This system was so effective that it attracted ‘significant numbers’ of applicants. However, since the caseload of repetitive cases is still considerable, the Court does not yet have its backlog of repetitive cases under control. One could argue that a human rights court should never be guided by pragmatic reasons, especially not when the consequence is that thousands of applications are not examined and that the applicants are sent back empty-handed to domestic authorities that have failed to address a structural problem for many years. However, the reality is that the Court has decreasing resources and an enormous caseload and that many measures have already been taken that limit access to the Court (see here and here). The more precise pragmatic question with which the Judges are faced in October, therefore, is whether the Court should “economise” by not deciding the Ivanov-type applications, whether it should economise by other means or whether it should restore the applications and, consequently, accept that it will take longer to decide other applications.

Additionally, when thinking about restoral in a pragmatic way, the Judges can wonder what is to be gained by restoring the cases and whether this “gain” trumps the negative consequences that restoral will have on the overall caseload and, thereby, on other applicants. As was noted above, restoral would be in the interest of the applicants whose case was struck out in Burmych. Restoral would also be in the interest of other people whose domestic judgment has not been enforced – provided that they have the means to bring a case to Strasbourg, which can create a divide between those who can and those who cannot. I highly doubt whether restoral would have another advantage in the sense that it would work as an incentive for Ukraine to execute the judgment. As was noted above, an important problem now is that Ukraine lacks a comprehensive strategy for solving the problem. Yet another judgment of the Court will not bring this strategy any closer, whereas expert advice, for example, probably will.[iii]

As I noted, the Court also gave principled reasons for its decision. It argued that, when it would continue to decide the applications, it would take on three tasks that it should not fulfil. First, the Court observed ‘that it runs the risk of operating as part of the Ukrainian legal enforcement system and substituting itself for the Ukrainian authorities in directing’ redress, which would be incompatible with its subsidiary role. The Court has excluded providing redress from its core task before. However, when excluding this, the Court nevertheless awarded just satisfaction, reserved the question of just satisfaction or noted that the applicants could use a domestic remedy. In Burmych, these circumstances did not exist. Therefore, the Court did not just see awarding compensation as ‘accessory’ to its task, but excluded it from its task completely.

Second, by resolving the ‘legal issues under the Convention’ in Ivanov, the Court considered that it had ‘discharged its function’. Delivering, ‘continually, individual decisions in cases where there was no longer any live Convention issue’ is not its task therefore. However, Committees of three Judges decide hundreds of repetitive cases each year and even gained the competence to adopt judgments in order to ‘cover repetitive cases’. Moreover, in 2018, the Committee judgments ‘accounted for 73% of the applications decided by a judgment’. In Burmych the Court, therefore, decided for the first time that it would not deal with applications because they were repetitive. This means that the Court treated the Burmych applicants differently from other applicants who bring a repetitive complaint. The reason for the difference in treatment is very unfortunate: Ukraine’s inertia.

Third, the Court explained it cannot ‘be converted into a body supervising execution of judgments’, which implies that, if the Court would have continued to decide the case, it would have taken on the task of the Committee. Although the Convention indeed makes the Committee responsible for this (Article 46(2) ECHR), the Court is involved in execution matters in the pilot-judgment procedure: it orders general measures and verifies to some extent whether the implemented measures are Convention compliant. In some other contexts too, the Court exceptionally engages in supervising the execution of its judgments. Even more importantly, when the Court would have decided Burmych on its merits, it would not have taken on the Committee’s task, as the Committee does not have that competence. Therefore, it is odd that the Court sees Burmych as a way to ensure that it does not take on the Committee’s task.

The analysis of the principled reasons demonstrates, as the Court acknowledged, that Burmych was new in three respects. Therefore, the Court could have decided the case differently if it would have decided it in line with previous case law. It is, however, too late to decide Burmych differently now, but it is possible to remedy the effects of the judgment by restoring the applications. As can be inferred from the analysis, I am not entirely convinced by the principled reasons. Additionally and as I noted, it is hard for me – as an outsider – to evaluate how convincing the pragmatic reason is, although I acknowledge that the Court must sometimes make unfortunate but pragmatic choices in light of its caseload and budget (for which the States parties bear responsibility). All I can do is whish the Judges much wisdom when considering restoration, if they will consider this at all. After all, the Court held in Burmych that it ‘may’ reassess the situation. For the sake of legal certainty, it would be commendable if the Court would indeed do this.

[i] “(a) the applicant does not intend to pursue his application; or (b) the matter has been resolved”.

[ii] The Court’s general caseload was 79,750 at the beginning of 2017 and 56,250 on 30 June 2019. The number of Committee cases was 47,500 on 1 January 2017 and 25,700 in 2018. In line with Article 28(1)(b) ECHR, Committees deal with repetitive cases. In 2017, the budget was 71,405,800 euros; in 2019, 69,997,500 euros.

[iii] Ukraine currently receives this advice ‘via the cooperation activities of the Council of Europe and the Secretariat’. See also here.

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