Ukraine's justice deficit, Carolyn Forstein

In June, European eyes will turn towards Ukraine as the country co-hosts the 2012 European Football Championship with Poland. The run up to the tournament has seen a chorus of criticism↑ directed by European leaders at Ukraine’s human rights record, and in particular the imprisonment and medical condition of former Prime Minister Yulia Tymoshenko and other former officials currently behind bars. Several leaders, including the presidents of Austria, the Czech Republic, and Slovenia, as well as many EU officials,↑ have announced their intention of boycotting matches taking place in Ukraine. While Tymoshenko and her case are undoubtedly important indicators of the state of rule of law in Ukraine, this focus has ignored  other judicial issues, endemic in Ukraine, that are undermining Europe’s own human rights mechanisms.

'Several leaders, including the presidents of Austria, the Czech Republic, and Slovenia, as well as many EU officials,↑ have announced their intention of boycotting matches taking place in Ukraine.'

In her 2011 annual report, the outgoing Ukrainian Ombudsman for Human Rights Nina Karpachova stated↑ that around two thirds of all Ukrainian judicial decisions remain unenforced either for a period of years or not at all. Often they concern  non political issues involving comparatively small amounts of money, such as pensioners’ failing to receive their monthly benefits payments on time.

For eight years, Ukraine has ignored Europe’s repeated demands for change

This ongoing problem has been repeatedly noted by the European Court of Human Rights, the judicial arm of the Council of Europe and the continent’s highest authority on human rights. In 2004, the Court handed down its first judgment concerning non-enforcement of court decisions in Ukraine. Six years later, after numerous meetings, over 300 almost identical cases and no practical or legislative progress, the European Court decided to try something new, and issued a pilot judgment. The pilot judgment procedure↑, introduced by the European Court  in 2004, is only used  to address systemic violations reflecting a general deficiency in the national system in question. In October 2009, the European Court handed down its first pilot judgment against Ukraine in the case Ivanov. v. Ukraine↑ . Yury Nikolayevich Ivanov was a Ukrainian military veteran who had failed to receive a lump retirement sum and compensation for his uniform, and tried unsuccessfully for several years to enforce his right to these payments, despite multiple court decisions in his favour.

The Ivanov pilot judgment gave the Ukrainian government one year to adopt legislation addressing the ability of the Ukrainian judiciary to enforce judgments, and to resolve all the cases concerning non-enforcement currently pending at the European Court. Later, the Court granted Ukraine a six-month extension, which expired in July 2011.

'[Ukraine’s] lack of response was the first, and so far the only, time that a member state of the Council of Europe openly ignored a pilot judgment.'

At this point, Ukraine had failed on both counts: no legislation had been passed, despite repeated discussion of a proposed draft law, and hundreds of cases remained unresolved.

This lack of response was the first, and so far the only, time that a member state of the Council of Europe openly ignored a pilot judgment. The Committee of Ministers, the Council of Europe’s body responsible for monitoring enforcement of the Court’s judgments, noted in its 2011 annual report↑ that ’national authorities have, in general, responded rapidly”’ to pilot judgments, and that ’the only exception, to date, is the Ivanov case against Ukraine.’ The report stated that this lapse ’creates a serious threat to the effectiveness of the Convention system’, and called on the Ukrainian government to immediately address the issue.

In September 2011, a draft law concerning non-enforcement was introduced in the Verkhovna Rada, Ukraine’s parliament. The bill, however, incorporated proposals to reduce certain social benefit payments, which sparked protests↑ by thousands of veterans of the Soviet Afghan War and the Chernobyl cleanup operation in cities across Ukraine, after which it disappeared from the legislative agenda. In December, the Committee of Ministers criticized the Ukrainian government for failing to tackle non-enforcement. In February, noting that the government had still not resolved the mass of pending cases, the European Court resolved to resume its own consideration of these applications.

'A draft law concerning non-enforcement incorporated proposals to reduce certain social benefit payments, which sparked protests↑ by thousands of veterans of the Soviet Afghan War and the Chernobyl cleanup operation in cities across Ukraine, after which it disappeared from the legislative agenda.'

Despite the fundamental nature of the issue in question and Ukraine’s flagrant disregard of the conditions set by the European Court, the Ukrainian response to the pilot judgment has aroused little international response, even though systemic issues such as non-enforcement are central to the ongoing debate on possible reform of the European Court and its effectiveness in protecting human rights in Europe.

What future for the European Court?

In April, the 47 member states of the Council of Europe – including all members of the European Union - met in the UK to discuss the future of the European Court. The Brighton Conference was the third such conference↑ in three years, following conferences in Izmir in 2011 and Interlaken in 2010. The backlog of cases pending at the European Court is one of the biggest challenges facing the system today. Currently cases, however well-founded and admissible, take several years to work their way through the system, thereby compromising the Court’s effectiveness. At Brighton, the final declaration↑ emphasized the importance of national governments discharging their human rights commitments under the European Convention. It also singled out pilot judgments as an important innovation for improving the Court’s effectiveness by identifying systemic issues and compelling governments to address them, theoretically resulting in fewer future identical applications.

Ukraine’s willingness to ignore its commitments under the European Convention on Human Rights demands international attention. For Ukrainians seeking justice – as for their counterparts in several neighbouring countries – the European Court is the last resort↑. In the past, whenever the Court ruled that the Ukrainian authorities must provide monetary compensation for a violation, the government paid up, while largely disregarding any underlying judicial or legal issues.

'Ukraine’s ability to ignore a pilot judgment has ramifications not only for Ukraine, but for the system at large. Human rights protection under the Council of Europe is the strongest of any region of the world. If the Ukrainian government can bypass a pilot judgment without any significant consequences, this weakens a mechanism which is crucial to human rights observance.'

The pilot judgment put this wilful blindness to the test. Increasing the enforcement rate of judicial decisions significantly improve the overall functionality of the Ukrainian judiciary and bring crucial practical benefits to Ukrainians trying to to access social security payments, healthcare benefits, unpaid salaries and other legally-guaranteed rights.

Ukraine’s ability to ignore a pilot judgment has ramifications not only for Ukraine, but for the system at large. Human rights protection under the Council of Europe is the strongest of any region of the world. If the Ukrainian government can bypass a pilot judgment without any significant consequences, this weakens a mechanism which is crucial to human rights observance.

Lastly, the European community has considerable legitimacy on this issue. European leaders’ pronouncements about Tymoshenko have been predictably criticized by the Ukrainian authorities as attempts to interfere with Ukrainian national politics,and breach national sovereignty in support of a personal and political ally. However, Europe has not only the ability, but the responsibility, to ensure the observation of the European Convention on Human Rights. The inability of Ukrainian citizens to secure the enforcement of court decisions is as much a failure to live up to European human rights standards as the Ukrainian authorities’ treatment of Tymoshenko. As the international community scrutinizes human rights in Ukraine in the run up to the European Football Championship, it should extend its focus beyond political leaders, and compel Ukraine to meet its commitments and institute judicial reform.