11. Execution of the judgment

The Court stated that the right to a court would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. The effective access to court includes the right to have a court decision enforced without undue delay.

The State is responsible for the enforcement of final decisions if the factors impeding or blocking their full and timely enforcement are within the control of the authorities. The state cannot cite a lack of funds as an excuse for not honouring a debt incurred as a result of a judgment ordered against a state authority.

However, the lack of funds may justify failure to enforce a final judgment against a private individual or a company. In such “horizontal” disputes (where the opposing parties are private), the role of the authorities is to reasonably assist successful claimants in enforcing the judgment in their favour, but not to guarantee its enforcement in all circumstances.

This is one of few areas where repetitive problems with non-enforcement in regard to certain countries have been dealt with by way of a pilot judgment, whereby a systemic problem can be indicated and various measures – including legislative ones – may be required by the European Court of Human Rights to be carried out by the respondent state within a limited time-frame.

Example

The case of Yuriy Nikolayevich Ivanov v. Ukraine, 15 October 2009

In the case the judgment of the Regional Court had not been fully enforced, the delay in its enforcement was about seven years and ten months. The European Court noted that the delays were caused by a combination of factors, including the lack of budgetary funds, shortcomings in the national legislation, as a result of which there existed no possibility for the applicant to have the judgments enforced.

The Court noted that the instant case concerned a recurring problem; more than half of its judgments in Ukrainian cases had concerned the issue of non-enforcement of final decisions. The Court observes that one of the first such judgments, delivered in June 2004.

The instant case demonstrated that the issues of the prolonged non-enforcement of final decisions remained without a solution.

The Court stated that the respondent State (Ukraine) must introduce without delay and at the latest within one year a remedy or a combination of remedies in the national legal system.

12. Fair trial: the Charter of Fundamental Rights of the eu and the echr

The Charter of Fundamental Rights of the European Union (CFR) proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission. However its then legal status was uncertain and it did not have full legal effect. But following the entry into force of the Lisbon Treaty in 2009 the Charter has the same legal value as the European Union (EU) treaties.

The Charter enshrines certain political, social, and economic rights for EU citizens and residents into EU law.

Article 47 of the CFR reads as follows:

Article 47

Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

The first paragraph is based on Article 13 of the ECHR:

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

However, in EU law the protection is more extensive since it guarantees the right to an effective remedy before a court.

The second paragraph of Article 47 of the CFR corresponds to Article 6(1) of the ECHR.

The limitation to the determination of civil rights and obligations or criminal charges does not apply as regards EU law and its implementation. Nevertheless, in all respects other than their scope (Article 47 of the CFR applies to the institutions of the Union and of Member States when they are implementing EU law), the guarantees afforded by the ECHR apply in a similar way to the EU.

With regard to the third paragraph, it should be noted that in accordance with the case law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy. There is also a system of legal assistance for cases before the Court of Justice of the European Union.

Article 48 of the CFR corresponds to Article 6(2) and(3) of the ECHR:

Article 48

Presumption of innocence and right of defence

1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.