Klymenko A.O., Leonenko M.I.

Classical Private University, Zaporizhzhya

Peculiarities and problems of the European Human Rights Court judgments execution mechanism

On September 11, 1997 the Convention on human rights and fundamental freedoms came into force in Ukraine. However the fact is obvious that any judgment, even European Human Rights Court judgment (hereinafter referred to as EHRC) in behalf of an applicant doesn’t have practical meaning, if there is no actual mechanism of such judgment execution. EHRC judgments execution is a specific legal institute, that differs from mechanisms foreseen for national courts judgments execution, and also for determination and execution of foreign courts, foreign non-state bodies judgments on the Ukrainian territory and by virtue of international liabilities, foreseen by the Convention on human rights and fundamental freedoms, supranational status of this body, special mechanisms are determined for its judgments execution.

There has been no any special legislative act for a long time in Ukraine that would regulate EHRC judgments execution, however on 30.03.2006 the law of Ukraine “About judgments execution and usage of European Human Rights Court practice“ came into force (hereinafter referred to as the Law).

European Human Rights Court judgments execution in a part of compensation payment is imposed on the state enforcement service body. The fact of EHRC judgments execution by the enforcement service gives rise to doubt on the part of some scientists. However they reason their position by the fact that state enforcement service’s functions are narrowed down to compulsory judgment execution and such way can be considered as promoter for voluntary judgment execution. The compensation amounts in accordance with EHRC judgments are budgeted in State budget for the corresponding year.

In accordance with the part 1 article 9 of the Law, if it is not possible to locate a Recoverer - an individual, and in case of a Recoverer’s death, or reorganization or liquidation of a Recoverer – a juridical person, the compensation amount is transferred to a deposit account of state enforcement service. The analogue procedure regards the case when a Recoverer doesn’t apply for compensation payment. In accordance to part 2 article 9 of this Law the grounds are foreseen for compensation amounts transfer from the deposit account of state enforcement service.

A question arises about determination of a Recoverer’s location. The law doesn’t include explanations about this procedure, this is neither state enforcement service’s liability no one of a representation body. In this case if a Recoverer wasn’t informed about European Court decision, no measures to determine his location will be taken, due to the fact that no body of state authority bears such responsibility.

In accordance with part 1 article 10 of the Law additional measures of individual character are: recovery of data inasmuch as it is possible about the preceding legal status that a Recoverer had before the Convention violation and measures foreseen in the judgment about amicable adjustment.

To sum it up I would like to note that the adoption of the Law of Ukraine “About judgments executions and application of European Court of Human Rights practice” is surely incredibly positive step on the way to guarantee the rights and freedoms of a person. Yet EHRC judgments execution in Ukraine has some argumentative and problematic aspects. Remediation of the situation needs certain efforts of legislative and court authority branches.

Judgments legal nature. Scientists’ special attention to European Human Rights Court (hereinafter referred to as EHRC) judgments legal nature is connected with specific EHRC role as a supranational juridical body that is entitled to explain and apply Convention About Human Rights and Basic Freedoms (hereinafter referred to as the Convention) as well as with peculiarities of legal system of states that are Members of European Council, which law unites continental and common types of legal systems.

Scientists emphasize on two approaches to understanding:

a) of legal nature;

b) of power regulating function of EHRC judgments.

Regarding judgments legal nature the majority of native authors (Climovich O., Solovyov, Suprun D., Timchenko L., Fedik S.) consider EHRC judgments as legal act having double legal nature: Law-applying and law-interpreting. Herewith some of them make bigger stress at characteristic of such judgments as law-interpreting acts (1, p. 120), while others concentrate at their law-applying nature. (2, p. 120).

Law-applying character of court judgments.

EHRC judgments are characterized by all features of law-applying acts:

1) these judgments are necessary conditions for appropriate realization of violated rights and freedoms , foreseen by the Convention.

2) EHRC judgments are characterized by direct effect.

3) EHRC judgments are approved by a competent (authorized by art. 32 of the Convention) body - EHRC.

4) They have written legal form of expression, consisting of three main parts: “Procedure”, “Facts”, “Point of Law”.

5) They have public-authoritative character and are guaranteed by interstate body European Council that controls their execution through specially authorized body (Cabinet Council) by state – respondent in a case and is authorized to apply legal and political sanctions to the latter for non fulfillment of such acts.

6) EHRC judgments as law-applying acts have individual, formally compulsory behavior rule, that involves revelation of presence and absence of the Convention violation and in dependence of the violation consequences justified satisfaction application.

7) EHRC judgments regulate only individual cases of social life, so their legal act is limited by individual precept of law. It means that EHRC judgments in a separate case can’t be applied to some other even analogue case “automatically”, without proper foundation of EHRC position in a new judgment, although it can refer to (and actually it refers to) it’s previous judgments when approving the following judgments in cases with analogue fable.

8) EHRC judgments compulsory act is always built upon personified subjects that are an applicant and a state – respondent. Although in facultative order resorting to the measures of general character, the state can act appropriately to avoid analogue violations regarding other subjects.

Legal-interpreting character of EHRC judgments.

Peculiarity of legal-interpreting activity of EHRC is the fact that its results have exterior legal form of legal-applying act that are its judgments. Although such legal –applying act has at the same time all signs of interpretation legal act:

1) rules of understanding of such norms content are valid only during the term of the Convention validity period.

2) EHRC judgments don’t have independent meaning and act only together with its norms.

3) in accordance with the article 32 of the Convention such judgment is a legal act of a competent subject that is EHRC.

4) EHRC judgments don’t by themselves create new legal norms, don’t change and cancel the existing legal norms. The Convention text starting from 1950 can be changed only through intermediation of Minutes to it (mainly in organizational – processional part), whereas the rules of its content understanding are changed at the discretion of EHRC with unchanging text of the Convention norms themselves.

5) the Convention interpretation that is contained in EHRC judgments is formally compulsory for all subjects, as only it can execute its official interpretation.

6) this judgment contains understanding rule of the contest of the Convention norms, that are abstract enough and are concretized by means of their interpretation by EHRC.

7) such judgments have legal force, determined by the status of legal-interpretation subject that is EHRC , it means it has legal force of EHRC judgment.

8) EHRC judgment has written legal form of expression.

9) Rule of the Convention content understanding that is contained in such judgment doesn’t step over the bounds at least declaratively (it is stated in legal propositions of EHRC that it can not derive from the corresponding norm “the law, that was not included into the text earlier” using evolutional interpretation [3, p. 20]). Usually EHRC uses general expressions and indicates that this or that law that is not literally written into the Convention text comes out from the certain norm in view of the Convention’s goals or explains characteristics of the certain notion that is included in the Convention’s norm. So from one hand EHRC “develops” the Convention’s norms, from another hand it determines, that doesn’t go beyond the boundaries of this norms, although such boundaries are wide enough [4, p. 176].

In its judgments EHRC usually determines not exhaustible list of signs of an expository notion but the one that corresponds to the certain stage of a specific society development, that what is more can be changed, as the Convention is «а living tool» [8]. So, for example, if when EHRC initially interpreted the notion “rights and duties of civil character” ( p. 1 article 6 of the Convention) it tended to the fact that the main feature of the notion is a civil character of relationship , that come out of such rights and duties, than it stopped consider this feature as determinative one.

To sum it up, we must specify that EHRC judgments have so to say mixed legal nature. From the one hand they unite in itself features of legal-applying and interpretational legal acts and from the other hand they are the result of legal-applying concretization. In any case they are not the result of law-making.

Problems of EHRC judgments authority.

Depending on what regulating function execute EHRC judgments some scientists (namely L. Wildhaber, V. Marmazov, V. Tumanov, D. Horoshkovska, S. Shevchuk) consider EHRC judgments as judgments that somehow have precedential nature. At that most defenders of such approach agree that it is about the precedent not according to its form and meaning in its classical understanding in English or American doctrine but about the precedent in accordance to its meaning (court judgment that include law positions having certain value for all subjects of social relations and are compulsory for the court itself, that delivers this judgment). The argument for this approach is the fact that EHRC itself calls its law positions “juridical law” (although only in English variant of EHRC judgment when in French variant the term “jurisprudence” is used. Besides EHRC itself recognizes presence of such elements of precedent as ratio decidendi (“basis for judgment”) and obiter dictum (“Parenthetically said”).

As there are no legal norms or law principals in EHRC judgments, such decisions can’t be considered as precedent source of law in classical meaning. If precedent notion is used regarding EHRC judgments one must keep in mind that this body is not rigidly connected with its previous decisions on analogue cases and in case of necessity it can depart from them having appropriate motivation of its position change (corresponding procedure is foreseen by the rule 72 of EHRC Regulations).

EHRC judgments execution matter.

Now this matter is becoming actual as judgments execution is foreseen in the article 46 of the Convention. This provision creates specific law obligations for a state-respondent.

The first main obligation is amounts payment, determined by European Court as just compensation to an applicant. In accordance to the article 41 of the Convention EHRC is entitled to oblige the state to compensate material and moral damage and also court costs. These amounts payment is liability that is clearly determined by the court’s judgment. In Ukraine European Court on Human Rights judgment are executed by State executive service of Ukraine in accordance with the article 3 of the Law of Ukraine.

Although payment of just compensation is not the only liability that comes out of judgment. A state-respondent depending on case circumstances may be obliged to take certain measures for European court judgment execution, where onу or several Convention violations are determined: firstly they are measures of individual character in favor of an applicant to stop lawless situation and compensate its consequences secondly measures of general character to prevent following violations of a similar type [16, p. 317].

THE LIST OF USED SOURCES

1. Rabinovich P.M. Peculiarities of legal norms of human rights interpretation (on practice of EHRC materials)/P.M. Rabinovich, S.E. Fedyk//Works of Lviv laboratory of human and citizen right NDT of state building and art of self-administration of Legal Science Academy of Ukraine – L., 2004 – P.123-140.

2. Tumanov V.A. European Human Rights Court. Study of organization and activity/V.A. Tumanov – M.: Grand, 2001.-304 p.

3. Rabinovich P.M. Human rights: “civility” criteria (in view of Strasburg University practice)/P.M. Rabinovich, R.B. Syviy//Herald of the Academy of Legal Sciences of Ukraine. – 2007. – No 4. – P.19-29.

4. Caplina O.V. Criminal Procedural Law Norms Legal-Applying Interpretation: [monograph] /O.V. Caplina – X.:Law. – 296 p.

5. Tirere v. Italy, Application No. 0005856/72, Judgment of 23 April 1963:

ECHR [electronic resource] /access mode: http://www.humanrights.is/the-human-rights.

6. Miheenko M.M. Criminal process of Ukraine/ M.M. Miheenko, V.T.Nor, V.P. Shybiko. – 2 edition, amended and adapted.- C.: Lybid, 1999. – 536 p.