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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Decision on rights

31.03.2014

By Oleksandr Dementiev, lawyer, Ilyashev & Partners Law Firm
Source: Yurydychna Praktyka

If obligation to execute judgments of the European Court is violated, the Committee of Ministers may consider temporary suspension of state’s representation in the Council of Europe

When preparing appeal to the European Court of Human Rights (ECtHR), the applicant shall be aware that it is usually followed by many difficulties. This includes, e.g. exact compliance of the application form with the requirements set by a “draconian” Rule 47 of the Rules of the European Court.

Otherwise the Court dismisses the appeal (without giving any reasons), notifying the applicant of removal of his/her file from the database. Is it worth reminding that such a picky attitude of the European Court, firstly, to the application form and then to its content results from its excessive workload?

In such conditions, careful supervision over observance of the formal filing requirements seems quite reasonable. However, this article does not focus on difficulties in applying to the European Court, we analyze the reverse side of convention-related procedure. First of all, proceedings in the European Court do not end by approval of decision until the respondent state performs individual or general measures imposed by the European Court.

Enforcement of judgments

Individual and general measures shall be differentiated as individual measures are connected with the State’s obligation to reimburse material and moral damages and court costs to the applicant. The payment of these amounts is mandatory and clearly defined in the judgment of the European Court – Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). In each case payment is due within three months since the judgment becomes final, or within other period established by the European Court (e.g. in the judgment of 25 July 2013 in “Agrokompleks v. Ukraine” the European Court set for Ukraine an unprecedented two-year term for payment of EUR 27 mln to Agrokompleks).

General measures are measures envisaged by judgment of the European Court of Human Rights aimed at eliminating the possibility of similar violations against others (improvement / elimination of causes of the infringed right). To prevent new violations of the Convention similar to those noted in the judgment of the European Court, the state undertakes to remedy problems in the domestic legal order.

Obviously, judgments of the European Court are read by the applicants from the last page. The applicant is primarily interested in the individual measures established by the European Court. In this case it is primarily a question of the amount of compensation awarded. However, even after receiving judgment of the European Court, the applicant understands that “fight” with the state for its execution begins. The state executes judgment by itself, without communication with the applicant, as judgment of the European Court is a kind of writ of execution. The applicant only has to forward to the authorized national authority his/her bank details for the transfer of the appropriate compensation due to the applicant.

Experience also shows that after receiving a long-awaited judgment of the European Court, many applicants feel some discomfort, understanding that the judgment of an international judicial body again returns them to the national authorities. The related experiences can be partially reduced if judgment of the European Court is executed in the conditions of information transparency.

In such circumstances, the applicants need to know that they have an effective opportunity to apply to the Department for the execution of judgments of the European Court of the Committee of Ministers in the following cases:
– the applicant wishes to obtain or provide information about payment by the state of compensation awarded by the European Court;
– the applicant wishes to make a complaint about the payment of appropriate compensation by the state;
– the time fixed by the European Court has expired, and fair compensation has not been paid or has been paid partially;
– fair compensation was paid after the deadline, a late payment fee has not been paid or has been paid partially, although the applicant provided his bank details, but received either no money or partial payment;
– the applicant needs help with the calculation of the corresponding penalties.

The Department can be addressed as follows: by mail – Council of Europe, DGI – Directorate General of Human Rights and Rule of Law, Just Satisfaction Section, Department for the Execution of Judgments of the ECHR, F-67075, Strasbourg Cedex; fax: +33 (0) 3.88.41.27.93; Email – dgl_execution_just_satisfaction@coe.int, stating case number, any changes in the applicant’s status (address, name, bank details) and attaching any relevant documents (e.g. a copy of the document confirming timely submission by the applicant of his bank details to the competent national authority).

If the period of just compensation has not yet expired, and the applicant provided his bank details, but did not get any money to his/her account, it shall be understood that fair compensation is not paid as a single fee, payment is made within a few weeks or months. It may be conditioned by the following reasons: time for receipt from the applicant of information necessary for making payment, need to comply with the rules of accounting, technical delays in making payment by the banks and methods of money transfer. In any case, the Committee of Ministers recommends waiting expiry of the payment term.

Supervision of the execution

Execution of the judgment is supervised by the Committee of Ministers of the Council of Europe. Article 46 of the Convention provides: if the Committee of Ministers considers that the state refuses to comply with a final judgment, it may, after formal notification of the State according to the decision approved by two thirds of votes of the representatives entitled to sit in the Committee, address the European Court with the question of performance by the state of its obligations under para 1 of Article 46 of the Convention.

The Convention envisages some consequences for the respondent state, but its provisions do not provide imposition on the state of any sanctions for non-execution of judgments of the European Court. The sanctions are set forth in the Charter of the Council of Europe (Charter).

In accordance with Article 8 of the Charter, the right to representation of any member of the Council of Europe (including Ukraine), which has seriously violated Article 3, may be suspended and the Committee of Ministers may invite him to withdraw from the Council as stipulated in Article 7. However, Article 3 of the Charter provides that each member of the Council of Europe must accept the principles of the rule of law and the principle according to which all persons under its jurisdiction shall enjoy human rights and fundamental freedoms and collaborate sincerely and effectively in order to achieve the objectives of the Council. In accordance with Article 7 of the Charter, any member of the Council of Europe may withdraw from it by a formal notification of its intention of the Secretary-General.

Such withdrawal shall take effect upon the expiration of the fiscal year in which the notice of withdrawal is made, if sent within the first nine months. If notification is given in the last three months of the fiscal year, withdrawal shall take effect upon the expiration of the next financial year.

In addition, Article 9 of the Charter provides that if a member of the Council of Europe does not fulfill its financial obligations, the Committee of Ministers may suspend the right of representation in the Committee and the Consultative Assembly until fulfillment of obligations.

Summarizing, we can assume that temporary deprivation of a member of the Council of Europe of the right of representation in the Committee of Ministers and the Consultative Assembly of the Council of Europe to some extend reduces responsibility of agencies of the Council of Europe when approving such decision (e.g. as compared to decision on deprivation of the right of representation without renewal).

Consequently, considering that Ukraine has repeatedly violated its obligations to implement the judgments of the European Court, we can assume that each subsequent default of respective obligations by Ukraine approximates the Committee of Ministers to suspension of Ukraine’s representation in the Council of Europe. The officers of public agencies may consider such decision of the Committee of Ministers as highly undesirable from a political viewpoint. It shall be noted that timely implementation of judgments of the European Court is very important for the state, as the amount of compensation awarded by the European Court in a particular case may well increase due to accrual of interest.

 
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