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BRINGING HUMAN RIGHTS HOME:  
THE CHALLENGE OF ENFORCING JUDICIAL 

RULINGS IN UKRAINE AND RUSSIA 

Andrey Meleshevich, Ph.D* and Carolyn Forstein** † 

ABSTRACT 

The problem of systemic non-enforcement of judicial decisions, the 
Ukrainian government’s failure to respond to a pilot judgment, and Russia’s 
legislative reform offer important case studies for both rule of law 
development in the post-Soviet sphere and the efficacy of the European 
human rights system. This article looks at systemic non-enforcement both 
as a domestic and international challenge. It first examines Ukraine’s 
history with the European Court of Human Rights and the response to the 
Ivanov v. Ukraine1 pilot judgment. It unpacks the factors that are 
responsible for persistent non-enforcement and for preventing domestic 
reform. It then turns to Russia, and explores the European Court of Human 
Rights’ pilot judgment in the case Burdov v. Russia (no. 2),2 the Russian 
response, and implementation of the subsequent reforms. Lastly, the article 
examines the significance and implications of these cases for the European 
human rights regime.  

 
 

 
                                                                                                                 
 * Ph. D, Dean and Professor, School of Law National University of Kyiv-Mohyla 
Academy. 
 ** Fulbright Research Fellow, School of Law National University of Kyiv-Mohyla 
Academy. 
 † The authors and the Indiana International & Comparative Law Review would 
especially like to thank Viktoriia Serediuk-Buz for her editing assistance. 
  This Article was completed and submitted to the The Indiana International & 
Comparative Law Review prior to the beginning of the Maidan protests in late 2013 and the 
end of the Yanukovych presidency in February 2014. Although the ongoing events in 
Ukraine have significantly changed the political landscape, this Article offers insight into the 
systemic problems facing the Ukrainian judiciary and some of the interest groups and 
governance issues, including budgetary shortfalls that have stymied reform in the past. 
Effective judicial reform remains a major challenge and priority for the current government, 
which must address the issues discussed within this Article in seeking to meet the 
international standards for effective and impartial judicial redress. On numerous occasions 
newly-elected President Petro Poroshenko has confirmed that Ukraine has chosen the 
European vector for its political and economic development. Adherence to the principles of 
the rule of law including strict execution of both international and domestic court decisions 
would signify an important step towards European values and standards. 
 1. Ivanov v. Ukraine, 2009 Eur. Ct. H.R. 767, archived at http://perma.cc/Q8HM-
8WSG. 
 2. Burdov v. Russia (No. 2), 2009 Eur. Ct. H.R., archived at http://perma.cc/LK8A-
ZHLR. 



270 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 

INTRODUCTION 

Over the past several years,3 Ukraine has garnered international 
attention concerning challenges to democratic consolidation, widespread 
corruption in the top echelons of government, and the high-profile trials of 
former government officials and opposition leaders.4  

However, one of the most significant obstacles to the development of 
rule of law in Ukraine is not new: the failure to enforce domestic judgments 
is an enduring feature of the national legal system. Nina Karpacheva, the 
former Human Rights Ombudsman of Ukraine, estimated in her 2011 
annual report that over 60 percent of all domestic court decisions and 98 
percent of the decisions of the European Court of Human Rights against 
Ukraine had not been fully enforced.5 While several factors contribute to 
the development of rule of law, a system in which verdicts regularly go 
unenforced cannot be said to provide consistent, fair, or meaningful justice.  

Article 6 of the Convention for the Protection of Human Rights and 
Fundamental Freedoms guarantees the right to “adequate and timely 
execution of legitimate judicial decisions.”6 The failure to enforce a court 
decision violates an individual’s right to a fair trial, which the European 
Court of Human Rights describes as a fundamental component of the rule 
of law,7 as well as the right to an effective remedy for the original violation 
found by the court.  

Domestic and international observers, the Ukrainian government, and 
the Council of Europe have repeatedly acknowledged and discussed this 
systemic shortcoming. In several of its earliest judgments against Ukraine, 
delivered in 2004, the European Court of Human Rights found Ukraine 
guilty of violating article 6 of the European Convention due to the state’s 
failure to effectively enforce domestic court decisions.8 Through the 

 
                                                                                                                 
 3. The authors also thank Nazar Kulchytsky for his comments on a draft of this Article. 
 4. OLEKSANDR SUSHKO & OLENA PRYSTAYKO, FREEDOM HOUSE, NATIONS IN TRANSIT 
2013, UKRAINE, archived at http://perma.cc/ZG4Z-AX3J. 
 5. Nina Karpacheva, Vystup Upovnovazhenoho Verkhovnoyi Rady Ukrayiny z prav 
lyudyny Niny Karpachovoyi pid chas predstavlennya Shchorichnoyi dopovidi pro stan 
dotrymannya ta zakhystu prav i svobod lyudyny v Ukrayini u Verkhovniy Radi Ukrayiny 
[Speech of the Human Rights Ombudsman of Ukraine Nina Karpachova Presenting the 
Annual Report on the State of Human Rights in Ukraine], OMBUDSMAN OF THE VERKHOVNA 
RADA OF UKRAINE FOR HUMAN RIGHTS, 18-19 (Feb. 7, 2012), archived at 
http://perma.cc/G6EW-M84R. 
 6. Andrey Meleshevich & Anna Khvorostyankina, Ukraine, in THE EUROPEAN 
CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN CENTRAL AND EASTERN 
EUROPE 576 (Leonard Hammer & Frank Emmert eds., 2012); Convention for the Protection 
of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 6. 
 7. Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) § 55 (1979). 
 8. E.g., Voytenko v. Ukraine, 2004 Eur. Ct. H.R., archived at http://perma.cc/FS6N-
K792; Zhovner v. Ukraine, 2004 Eur. Ct. H.R., archived at http://perma.cc/5V3N-MXUX\.  



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 271 
 
beginning of 2012, the court issued 432 similar judgments against Ukraine.9 
In 2009, the European Court of Human Rights issued a pilot judgment, 
which compelled the Ukrainian authorities to address non-enforcement on 
an institutional level and set a time period for a sufficient national 
response.10 This deadline passed in July of 2011.11 At the time of writing 
this Article, the Ukrainian government has not instituted any of the required 
domestic reforms,12 arguably making Ukraine the first state to ever fail to 
respond to a pilot judgment of the European Court of Human Rights.  

The Council of Europe has identified non-enforcement of domestic 
judgments as a systemic, ongoing challenge not only in Ukraine but also in 
Russia, Moldova, and Romania.13 Nine months before applying the pilot 
judgment procedure against Ukraine for non-enforcement of domestic 
judgments, the European Court of Human Rights issued a pilot judgment 
against Russia concerning the same issue.14 In contrast to Ukraine, Russia, a 
country with its own thorny history of relations with the European Court of 
Human Rights, responded within the prescribed time period by passing 
federal legislation designed to tackle the issue.15  

The problem of systemic non-enforcement of judicial decisions, the 
Ukrainian government’s failure to respond to a pilot judgment, and Russia’s 
legislative reform offer important case studies for both rule of law 
development in the post-Soviet sphere and the efficacy of the European 
human rights system. This Article looks at systemic non-enforcement both 
as a domestic and international challenge. It first examines Ukraine’s 
history with the European Court of Human Rights and the response to the 

 
                                                                                                                 
 9. EUR. CT. HUM. RTS., VIOLATION BY ARTICLE AND BY STATE 1959-2011 (2011), 
archived at http://perma.cc/Y5CT-CSLR. In addition to the 432 decisions concerning 
violations of the right to a fair trial, the European Court of Human Rights also issued 259 
decisions in which it found Ukraine guilty of violating the right to a hearing within a 
reasonable period of time. Id. 
 10. Ivanov v. Ukraine, 2009 Eur. Ct. H.R., archived at http://perma.cc/Q8HM-8WSG. 
 11. Comm. of Ministers, Communication from the Registry of the European Court 
Concerning the Pilot Judgment Delivered in the Case of Yuriy Nikolayevich Ivanov against 
Ukraine 1 (2011).  
 12. EUR. CT. HUM. RTS., PRESS UNIT, PILOT JUDGMENTS: FACTSHEET 3-4 (2013), 
archived at http://perma.cc/YM7F-FBPG. 
 13. Eur. Parl. Ass., States with Major Structural/Systemic Problems Before the 
European Court of Human Rights: Statistics, Doc. AS/Jur/Inf (2011) 05 rev 2 (2011), 
archived at http://perma.cc/Q4HA-TGL5. 
 14. Burdov v. Russia (No. 2), 2009 Eur. Ct. H.R., archived at http://perma.cc/LK8A-
ZHLR. 
 15. Council of Eur., Comm. of Ministers, Interim Resolution, Execution of the Judgment 
of the European Court of Human Rights Burdov No. 2 Against the Russian Federation 
Regarding Failure or Serious Delay in Abiding by Final Domestic Judicial Decisions 
Delivered Against the State and its Entities as well as the Absence of an Effective Remedy, 
CM/ResDH (2011) 293 (2011), archived at http://perma.cc/4TMK-9ZWJ. 



272 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
Ivanov v. Ukraine pilot judgment.16 It unpacks the factors that are 
responsible for persistent non-enforcement and for preventing domestic 
reform. It then turns to Russia, and explores the court’s pilot judgment in 
the case Burdov v. Russia (no. 2),17 the Russian response, and 
implementation of the subsequent reforms. Lastly, the Article examines the 
significance and implications of these cases for the European human rights 
regime.  

I. A HISTORY OF NON-ENFORCEMENT IN UKRAINE 

The non-enforcement of domestic judgments is an enduring problem 
in post-Soviet Ukraine, as reflected by Ukraine’s record at the European 
Court of Human Rights. Ukraine acceded to the Council of Europe in 1995, 
ratified the European Convention on Human Rights in 1997, and received 
its first judgment from the European Court of Human Rights in 2001.18 In 
2004, the court issued a decision in Zhovner v. Ukraine, the first case 
concerning non-enforcement, and since then the number of applications 
presenting this issue has continued to grow.19 By 2010, cases about the non-
enforcement of domestic decisions comprised over 50 percent of all 
European Court of Human Rights judgments against Ukraine.20  

The widespread nature of the issue has not gone unnoticed. The 
Committee of Ministers, the branch of the Council of Europe responsible 
for overseeing the execution of European Court of Human Rights 
judgments, monitored the Zhovner decision and subsequent similar rulings. 
A number of documents produced by the Committee of Ministers confirm 
that while the Ukrainian government is well aware of the problem of non-
enforcement and ready to provide financial compensation to individual 
claimants at the European Court of Human Rights, it has not made effective 
efforts at systemic reform.  

The first serious international assessment of systemic non-
enforcement of judicial decisions in Ukraine was a June 2007 memorandum 
prepared by the Department for Enforcement of Judgments of the European 

 
                                                                                                                 
 16. Ivanov v. Ukraine, 2009 Eur. Ct. H.R. 767, archived at http://perma.cc/Q8HM-
8WSG. 
 17. Burdov v. Russia (No. 2), 2009 Eur. Ct. H.R. 
 18. PRESS UNIT, PILOT JUDGMENTS: FACTSHEET, supra note 12, at 1. 
 19. Zhovner v. Ukraine, 2004 Eur. Ct. H.R., archived at http://perma.cc/5V3N-MXUX\. 
The court ruled on a handful of Ukrainian cases between 2001-2003, and the Zhovner 
judgment was only the seventeenth judgment regarding Ukraine. See Council of Europe, 
Judgment and Decisions, European Court of Human Rights (last visited March 8, 2014), 
http://www.echr.coe.int/Pages/home.aspx?p=caselaw&c=. 
 20. Christos Pourgourides, Council of Eur., Implementation of Judgments of the 
European Court of Human Rights 7th Report, Doc. AS/Jur (2010) 36, ¶ 153 (2010) 
[hereinafter Pourgourides, 7th Report], archived at http://perma.cc/QC86-MFN5. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 273 
 
Court of Human Rights at the Committee of Ministers. The memorandum 
identified five key underlying factors: a lack of financing in the state budget 
to enforce judgments against the state or state-owned companies; the 
complexity of the legal rules for seizure of state-owned accounts; a lack of 
regulations ensuring compensation for delayed enforcement; a lack of 
liability for the officials tasked with enforcement; and the inefficiency of 
the Ukrainian bailiffs’ service.21 The document also specifically praised the 
National Action Plan for Ensuring Due Enforcement of Courts’ Decisions, 
which was approved by Decree of the President of Ukraine on June 27, 
2006, and proposed a number of measures to “increase the efficiency of the 
state enforcement service and improve the procedure for compulsory 
enforcement.”22  

In March of 2008, the Committee of Ministers noted positively that 
Ukraine had developed three draft laws, which sought to end a prohibition 
on the forced sale of state-owned assets and increase the efficiency of 
enforcement procedures, but recorded that “little progress has been made so 
far in resolving the structural problem of non-execution of domestic judicial 
decisions.”23 A subsequent Interim Resolution in 2009 noted that none of 
the draft laws had been adopted and “deplore[d]” that “the Ukrainian 
authorities have continuously failed to give priority to finding effective 
solutions.”24 While both the Committee of Ministers and the Ukrainian 
government acknowledged that non-enforcement was a critical and 
complicated issue demanding reform in multiple sectors, the government 
made no tangible progress at addressing non-enforcement through the end 
of 2009. This persistent inaction set the stage for a pilot judgment against 
Ukraine. 

In recent years, a mass of identical applications have accumulated at 
the European Court of Human Rights, primarily concerning article 6.25 The 
 
                                                                                                                 
 21. Comm. of Ministers, Non-Enforcement of Domestic Judicial Decisions in Ukraine: 
General Measures to Comply with the European Court’s Judgments, CM/Inf/DH (2007) 30, 
6 (2007) revised. 
 22. Ukaz Prezydenta Ukrayiny №587/2006 “Pro Natsionalnyi plan dii iz 
zabezpechennya nalezhnoho vykonannya rishen sudiv” [Decree of the President of Ukraine 
№587/2006 on the National Action Plan for Ensuring Due Enforcement of Courts 
Decisions], June 27, 2006, archived at http://perma.cc/4LMF-D2JM.  
 23. Comm. of Ministers, Final Resolution on the Execution of the Judgements of the 
European Court of Human Rights in 232 Cases Against Ukraine Relative to the Failure or 
Serious Delay in Abiding by Final Domestic Judicial Decisions Delivered Against the State 
and its Entities as Well as the Absence of an Effective Remedy, CM/ResDH (2008) 1, ¶ 32 
(2008). 
 24. Comm. of Ministers, Interim Resolution Execution of the Judgments of the 
European Court of Human Rights in 324 Cases Against Ukraine Concerning the Failure or 
Serious Delay in Abiding by Final Domestic Courts’ Decisions Delivered Against the State 
and its Entities as Well as the Absence of an Effective Remedy, CM/ResDH (2009) 1591, ¶ 
13 (2009). 
 25. Christos Pourgourides, Council of Eur., Report on Implementation of Judgments of 



274 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
vast majority of admissible applications are repetitive of earlier cases, 
revealing systemic violations, and stemming primarily from Russia, 
Ukraine, Turkey, Italy, Poland, and Romania.26 The resulting backlog of 
cases has caused much concern, and consequently, detailed debate within 
the Council of Europe concerning the structure and future of the European 
Court of Human Rights.27  

The pilot judgment procedure is a relatively new function of the court, 
used for the first time in 2004 in the case of Broniowski v. Poland.28 The 
procedure is a means to support reform at the national level to eliminate the 
causes of repeated violations of the European Convention, thereby 
ameliorating two significant problems. By compelling member states to 
address their systemic shortcomings, the court ensures the effective 
protection of the rights guaranteed by the Convention while fully 
complying with the principle of subsidiarity.29 Additionally, the pilot 
judgment procedure reduces the number of repetitive applications to the 
court, which have become a serious threat to the efficacy of the court.  

The central idea of the pilot mechanism is “that where there are a 
large number of applications concerning the same problem, applicants will 
obtain redress more speedily if an effective remedy is established at 
national level than if their cases are processed on an individual basis in 
Strasbourg.”30 In a pilot judgment, the European Court of Human Rights 
goes beyond calling for general measures, by specifically identifying “the 
dysfunction under national law that is at the root of the violation,” and 
proposing steps to the responsible state government to remedy the problem 
and resolve similar pending cases.31 Another unique feature of the pilot 

                                                                                                                 
the European Court of Human Rights, Doc. 12455, 38 (2010), archived at 
http://perma.cc/9V5P-R49Z.  
 26. Eur. Parl. Ass., supra note 13, at 4. 
 27. Three high level conferences took place in 2010, 2011, and 2012 at Interlaken, 
Izmir, and Brighton, respectively, regarding the future of the European Court of Human 
Rights. Each conference included official representatives from all member states and 
produced a declaration, which can be accessed via the European Court’s website at 
http://www.echr.coe.int/ECHR/EN/Header/The+Court/Reform+of+the+Court/Conferences/, 
archived at http://perma.cc/64DZ-ZG3. 
 28. PRESS UNIT, PILOT JUDGMENTS: FACTSHEET, supra note 12, at 1; Broniowski v. 
Poland, 2004 Eur. Ct. H.R. 307, archived at http://perma.cc/SD8K-M4BR.  
 29. According to the European Court, the principle of subsidiarity is one of the most 
fundamental principles for the whole Convention system and might have several somewhat 
different meanings; “however, in the specific context of the European Court of Human 
Rights, it means that the task of ensuring respect for the rights enshrined in the Convention 
lies first and foremost with the authorities in the Contracting States rather than with the 
Court. The Court can and should intervene only where the domestic authorities fail in that 
task.” Eur. Ct. Hum. Rts., Interlaken Follow-Up, Principle of Subsidiarity (2010), archived 
at http://perma.cc/W2YL-32JX.  
 30. Eur. Ct. Hum. Rts., The Pilot-Judgment Procedure: Information Note Issued By the 
Registrar, ¶ 6 (2009), archived at http://perma.cc/3RW9-VRQL.  
 31. Id. at ¶ 3. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 275 
 
judgment procedure is that the court has the option of freezing all of the 
related pending admissible applications to the European Court of Human 
Rights for a set period of time, giving a government the opportunity and 
incentive to resolve them on the domestic level.32  

II. A PILOT JUDGMENT FOR UKRAINE 

The case of Yuriy Nikolayevich Ivanov v. Ukraine33 was the first pilot 
judgment against Ukraine and exemplifies the commonplace challenge of 
enforcing a domestic judgment in Ukraine. Yuriy Ivanov served in the 
Ukrainian army and retired in 2000.34 Upon his retirement, Ivanov was 
entitled to one-time retirement payment and compensation for his uniform, 
but did not receive either.35 Ivanov took his case to court, and in August 
2001 a regional military court found in his favor, ordering his military unit 
to pay him the retirement sum, uniform compensation, and court fees, all of 
which together totaled 4,012.86 hryvnia, or approximately EUR 800 at the 
time.36 Over the next several years, Ivanov pursued his case in multiple 
courts in an effort to have this decision enforced.37 At an unspecified point, 
Ivanov received the 2,515.50 hryvnia owed to him for the retirement lump 
sum, but nothing towards the awards for his uniform and court fees.38 In 
January 2002, bailiffs informed Ivanov that they had frozen the bank 
accounts of the debtor, his former military unit, but that “no funds had been 
found in those accounts.”39 The following November, Ivanov received a 
letter from the Ukrainian Ministry of Defense explaining that he was not 
entitled to compensation for his uniform as there were “no budgetary 
allocations for such payments.”40 In April 2004, more than two and a half 
years after the original judgment was issued against the military unit, the 
bailiffs informed Ivanov by letter that the unit still had no money and that 
“forced sale of assets belonging to military units was prohibited by the 
law,” and thus that they had no means of enforcing the judgment.41 

Following the bailiffs’ response in January 2002, Ivanov lodged a 
separate complaint in a district court about the lack of action.42 In December 
2002, that court ruled that the bailiffs “had not taken the necessary 
measures” and ordered them to “identify and freeze the bank accounts of 
 
                                                                                                                 
 32. Id. at ¶ 5. 
 33. Ivanov v. Ukraine, 2009 Eur. Ct. H.R., archived at http://perma.cc/Q8HM-8WSG. 
 34. Ivanov ¶ 8. 
 35. Ivanov ¶ 8. 
 36. Ivanov ¶ 9. 
 37. Ivanov ¶¶ 16-19. 
 38. Ivanov ¶ 10. 
 39. Ivanov ¶ 11. 
 40. Ivanov ¶ 12.  
 41. Ivanov ¶ 14. 
 42. Ivanov ¶ 16. 



276 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
the debtor military unit in order to seize the money available in those 
accounts.”43 According to Ivanov, the bailiffs did not comply with this 
ruling, and in May of 2003 he lodged yet another claim in the same district 
court against the bailiffs seeking both compensatory and non-pecuniary 
damages.44 Finding that the August 2001 judgement was still unenforced 
“through the fault of the bailiffs,” the district court in July 2003 awarded 
Ivanov 1,500.36 hryvnia in pecuniary damages and another 1,000 hryvnia 
in non-pecuniary damages.45 This judgment, in turn, was similarly not 
executed. By 2009, when the European Court of Human Rights ruled on 
Ivanov’s case, both the remainder of the initial judgment of 2001 and the 
2003 judgment against the bailiffs’ remained unenforced, amounting to a 
delay of over seven years.46  

The near-decade Ivanov spent pursuing what should have been a 
routine payment prescribed by Ukrainian law is emblematic of the obstacles 
facing Ukrainian citizens in interacting with the national legal system. The 
European Court of Human Rights found violations of Ivanov’s rights under 
article 6 section 1, article 13, and article 1 of protocol 1 for the non-
enforcement of both the 2001 and 2003 judgments.47 The court noted that in 
similar cases against Ukraine it had repeatedly found violations of article 6 
section 1, which guarantees the right to a fair trial, including enforcement, 
and article 1 of protocol 1, which protects property rights.48 While 
acknowledging that the delays in enforcement had numerous causes, 
“including the lack of budgetary funds, omissions on the part of the bailiffs, 
and shortcomings in the national legislation,” the court stressed that “those 
factors were not outside the control of the authorities,” and that the state 
was responsible for the violations.49 

Regarding article 13, which protects the right to an effective remedy, 
the European Court of Human Rights referenced both past cases against 
Ukraine, and the pilot judgment issued against Russia nine months earlier in 
Burdov (2) v. Russia, which also concerned non-enforcement.50 Citing 
Burdov, the court noted that “the burden to comply” with a domestic 
judgment regarding enforcement “lies primarily with the State 
authorities.”51 The court also recalled the Voytenko v. Ukraine case, in 
which another veteran seeking compensation from his former military unit 
faced the same obstacles to enforcement as Ivanov. In Voytenko, the court 

 
                                                                                                                 
 43. Ivanov ¶ 16. 
 44. Ivanov ¶ 17. 
 45. Ivanov ¶ 18. 
 46. Ivanov ¶ 55. 
 47. Ivanov ¶¶ 57, 69-70. 
 48. Ivanov ¶ 56. 
 49. Ivanov ¶¶ 55-58.  
 50. Ivanov ¶¶ 65-67. 
 51. 2009 Eur. Ct. H.R. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 277 
 
found that the enforcement of judgments against a government institution 
“can only be carried out if the State foresees and makes provision for the 
appropriate expenditures in the State Budget of Ukraine,” and thus that 
enforcement of judgments is “prevented precisely because of the lack of 
legislative measures, rather than by a bailiff’s misconduct.”52 Neither 
individual citizens nor bailiffs or judges have any ability to enforce court 
decisions concerning a monetary award if the necessary funds are not 
already in place. 

The facts of the Ivanov case clearly demonstrated that non-
enforcement was a longstanding issue with roots in several aspects of the 
Ukrainian legal, judicial, and political systems. After discussing the 
individual merits of the case, the European Court of Human Rights decided 
to apply the pilot judgment procedure for the first time against Ukraine, 
citing “the recurrent and persistent nature of the underlying problems, the 
large number of people affected by them in Ukraine and the urgent need to 
grant them speedy and appropriate redress at domestic level.”53  

In contrast to past decisions and general measures, the pilot judgment 
set out specific conditions and deadlines. The court granted Ukraine one 
year from the date the decision became final to introduce “an effective 
domestic remedy or combination of such remedies capable of securing 
adequate and sufficient redress for the non-enforcement or delayed 
enforcement of domestic decisions.”54 The court decided to adjourn 
proceedings for the approximately 1,400 pending applications concerning 
similar issues for the course of this year, during which time the Ukrainian 
government was encouraged to resolve these cases through individual 
settlements or the implementation of a new domestic judicial mechanism.55 
Any new applications concerning the same issues that arose during the year 
would also be adjourned, and the applicants notified.56 If Ukraine failed to 
take action and set up a new functional remedy or to resolve the former 
group of cases, the court would resume consideration of all pending 
applications, including those received after the pilot judgment became 
final.57  

III. UKRAINE’S RESPONSE 

The Ukrainian response to the pilot judgment has been minimal. The 
Ivanov judgment was issued on October 15, 2009, and became final on 

 
                                                                                                                 
 52. Voytenko v. Ukraine, 2004 Eur. Ct. H.R. ¶ 30, archived at http://perma.cc/FS6N-
K792.  
 53. Ivanov ¶ 81. 
 54. Ivanov at 27-28 (§ 5 of verdict).  
 55. Ivanov ¶¶ 86, 98-99.  
 56. Ivanov ¶ 97. 
 57. Ivanov ¶ 100. 



278 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
January 15, 2010.58 In an interim resolution assessing Ukraine’s progress in 
November 2010, the Committee of Ministers evaluated the execution of the 
Ivanov pilot judgment and 386 other decisions against Ukraine concerning 
non-enforcement of domestic decisions and the lack of an effective 
remedy.59 The Committee of Ministers reported that the Ukrainian 
authorities had informed them of the preparation of a draft law entitled On 
Enforcement of the Court Decisions for which the State is Responsible, but 
had not provided either details of its content or a timetable for its passage.60 
The resolution also noted that Ukraine had made little progress in settling 
the pending individual cases.61 Christos Pourgourides, the Chair of the 
Committee on Legal Affairs and Human Rights of the Parliamentary 
Assembly of the Council of Europe (PACE), assessed the Ukrainian 
response to Ivanov in a November 2010 report, stating that “this issue, to 
my consternation, does not appear to be a priority for the authorities, 
notwithstanding the clear wording of the Court’s pilot judgment.”62  

In December 2010, a month before the initial deadline was set to 
expire, the Ukrainian government requested a 12-month extension.63 In 
response, the European Court of Human Rights granted Ukraine a 6-month 
extension through July 15, 2011, but noted that non-enforcement “had not 
improved in the year since the judgment became final,” and that the 
reported draft law on enforcement had not been passed.64 While some of the 
individual cases had been settled, approximately 1,100 cases remained 
unresolved, and the court planned to process another 450 related cases that 
had been received after the Ivanov judgment became final.65  

In June, the Government Agent of Ukraine before the European Court 
of Human Rights, Valeria Lutkovska, reported that a draft law entitled On 
Guarantees of the State Concerning Execution of Court Decisions, which 
“address[ed] problems identified by the Court’s pilot judgment and 
provid[ed] a domestic remedy,” had been introduced in the Verkhovna 
Rada and was awaiting a first reading.66 This statement did not correspond 

 
                                                                                                                 
 58. Ivanov (at the top of the judgment). 
 59. Comm. of Ministers, Interim Resolution Execution of the Pilot Judgment of the 
European Court of Human Rights in the Case Yuriy Nikolayevich Ivanov against Ukraine 
and of 386 Cases against Ukraine Concerning the Failure or Serious Delay in Abiding by 
Final Domestic Courts’ Decisions Delivered against the State and its Entities as well as the 
Absence of an Effective Remedy, CM/ResDH (2010) 222, (2010). 
 60. Id. ¶¶ 9-10. 
 61. Id. ¶ 11. 
 62. Pourgourides, 7th Report, supra note 20, ¶ 158. 
 63. Comm. of Ministers, Communication from the Registry of the European Court 
concerning the Pilot Judgment Delivered in the Case of Yuriy Nikolayevich Ivanov against 
Ukraine, (Application No. 40450/04), DH-DD (2011) 54E, 1 (2011). 
 64. Id. 
 65. Id. at 1-2. 
 66. Comm. of Ministers, Communication from Ukraine in the case of Yuriy 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 279 
 
with actual events, as a bill with this name was only introduced in the Rada 
in September of 2011. 

The first version of this draft law had the slightly different title On 
Guarantees of the State Concerning Execution of Decisions of the Court 
(No. 7562) and was reportedly introduced in the Verkhovna Rada, 
according to the Rada’s official website, on January 14, 2011, one day 
before the original deadline set by the pilot judgment expired.67 However, 
this bill was never introduced for debate and, on September 6, 2011, was 
removed from the agenda of the Rada.68 The second version, which was de 
jure a new draft law, entitled On Guarantees of the State Concerning 
Execution of Court Decisions (No. 9127) was introduced in parliament on 
September 8, 2011, and adopted at first reading the following day.69 

In July 2011, the government requested another six-month 
extension.70 This time, the court rejected the extension request, noting that 
there had been no improvement in enforcement over the past year and a 
half.71 The court emphasized that approximately 1,000 of the frozen cases 
remained unsettled and pointed to the Committee of Ministers as the best 
body to assist Ukraine in implementing legislative and administrative 
reforms.72 

In correspondence with the Committee of Ministers, the Ukrainian 
government repeatedly pointed to the proposed draft law as a potential 
solution. In a September 2011, communication to the Department for the 
Execution of Judgments of the European Court of Human Rights, Valeria 
Lutkovska described how the law provides a “new procedure for execution” 
of court decisions as well as a “solution of the problem concerning the 
outstanding debt that is to be paid” by amending multiple laws regulating 
social benefits and other components of the State budget.73 The Committee 

                                                                                                                 
Nikolayevich Ivanov (Application No. 40450/04) and the Zhovner group of cases 
(Application No. 56848/00) against Ukraine, DH-DD (2011) 433E (2011). 
 67. Proekt zakony pro harantii derzhavy shchodo vykonannya rishen’ sudu [Draft Law 
on Guarantees of the State Concerning the Enforcement of Decisions of the Court], KARTKA 
ZAKONOPROYEKTU [RECORD OF THE DRAFT LAW] (2011) [hereinafter Draft Law No. 7562], 
available at http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=39454 (last visited 
May 17, 2014). 
 68. Id. 
 69. Proekt zakony pro harantyi derzhavy shchodo vykonannya sudovykh rishen’ [Draft 
Law On Guarantees of the State Concerning the Enforcement of Court Decisions], KARTKA 
ZAKONOPROYEKTU [RECORD OF THE DRAFT LAW], (2011) [hereinafter Draft Law No. 9127], 
available at http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=41092 (last visited 
May 17, 2014). 
 70. Comm. of Ministers, Communication from the Registry of the European Court 
Concerning the Judgment Delivered in the Case of Yuriy Nikolayevich Ivanov against 
Ukraine (Application No. 40450/04), DH-DD (2011) 757E (2011), archived at 
http://perma.cc/3DNC-4FD3.  
 71. Id. 
 72. Id. 
 73. Comm. of Ministers, Communication from Ukraine Concerning the Cases of Yuriy 



280 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
of Ministers and various officials from the Council of Europe called on 
Ukraine to pass the proposed draft law without delay.74 However, the law, 
which includes a provision authorizing the Cabinet of Ministers to change 
the amount of the social benefits paid in a given year depending on the size 
of the annual budget, has faced strong opposition from civil society 
organizations and social groups.75  

In December of 2011, the Committee of Ministers passed an interim 
resolution conveying its regret that Ukraine had yet to fully execute the 
pilot judgment and stating that this failure “creates a serious threat to the 
effectiveness of the Convention,”76 and to the European Court of Human 
Rights. The Committee of Ministers again stressed the need for the 
Ukrainian authorities to resolve the pending individual cases, and to 
“urgently” provide an alternative remedy if the draft law would not be 
passed.77 In late February 2012, the European Court of Human Rights 
examined the state of implementation of the Ivanov judgment. Noting that 
Ukraine had “not adopted the required general measures to tackle the issues 
of non-enforcement at the domestic level,” the court decided to unfreeze 
and resume consideration of the similar cases pending at the court, which 
by February numbered approximately 2,500.78 The court found that the 
Ukrainian authorities had not only failed to implement reforms that would 
prevent future violations, but also failed to settle about 700 of the individual 
cases which the court had directly communicated to the Ukrainian 
Government.79 The Committee of Ministers released another decision on 
March 12, which again emphasized that the pilot judgment had not been 
implemented in full and called upon the Ukrainian authorities to urgently 
take steps towards its execution, including making necessary changes to the 
draft law On Guarantees of the State Concerning Execution of Court 
Decisions (No. 9127) and providing information on the timing of its 
passage.80 
                                                                                                                 
Nikolayevich Ivanov against Ukraine (Application No. 40450/04) and Kharchenko against 
Ukraine (Application No. 40107/02), DH-DD (2011) 705E (2011). 
 74. Comm. of Ministers, Interim Resolution Execution of the Pilot Judgment of the 
European Court of Human Rights Yuriy Nikolayevich Ivanov against Ukraine and of 386 
Cases against Ukraine Concerning the Failure or Serious Delay in Abiding by Final 
Domestic Courts’ Decisions Delivered against the State and its Entities as Well as the 
Absence of an Effective Remedy, CM/ResDH (2011) 184 (2011), archived at 
http://perma.cc/964R-8VH6. 
 75. See infra Sections VI and VIII.  
 76. Comm. of Ministers, Decision Cases No. 24 - Yuri Nikolaevich and Zhovner Group 
against Ukraine, CM/Del/Dec (2011) 1128/24 (2011). 
 77. Id. 
 78. Press Release, ECHR 086, Eur. Ct. of Hum. Rts., Court Decides to Resume 
Examination of Applications Concerning Non-Enforcement of Domestic Decisions in 
Ukraine (Feb. 29, 2012).  
 79. Id. 
 80. Comm. of Ministers, Decision Cases No. 24 - Yuri Nikolaevich and Zhovner Group 
against Ukraine, CM/Del/Dec (2012) 1136/24 (2012). 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 281 
 

Finally, on June 5, the Verkhovna Rada adopted draft law No. 9127 in 
its final reading, and on June 22, the President of Ukraine signed the bill 
into law.81 Law of Ukraine No. 4901-VI On Guarantees of the State 
Concerning Execution of Court Decisions entered into force on January 1, 
2013.82 Our analysis of Law No. 4901-VI below83 shows that the law is 
unlikely to change the dynamics of enforcement of court judgments in 
Ukraine in the near future.  

IV. UNPACKING SYSTEMIC NON-ENFORCEMENT 

The reasons for the systemic non-enforcement of Ukrainian judicial 
decisions and the decisions of the European Court of Human Rights against 
Ukraine fall into two camps: the social, economic, financial, and 
administrative norms in modern Ukraine; and the lack of will among the 
relevant state actors. International and Ukrainian experts acknowledge that 
non-enforcement of domestic judgments is a systemic, enduring problem 
with roots in multiple sectors, and demands complex and far-reaching 
reforms.84 At the same time, the absence of such reforms, in combination 
with the Ukrainian government’s ongoing failure to settle the pending 
individual cases at the European Court of Human Rights and inadequate 
response to the pilot judgment reflects a clear lack of political will. 

Practitioners and scholars have identified several factors that 
influence governments’ responses to pilot judgments. One of the most 
important components is a state’s capacity for reform. The issues concerned 
in pilot judgments are by definition systemic problems, and shortcomings in 
national responses are due in part to the complexity of effectively 
addressing these weaknesses. Scholars Philip Leach, Helen Hardman, 
Svetlana Stephenson, and Brad K. Blitz posit that “a state’s non-compliance 
with a pilot judgment may be the result of ‘voluntary’ resistance (where 
there is a conscious decision not to execute the judgment) or ‘involuntary’ 
resistance (where there is political will to implement the judgment, but the 
state is simply not able to bring about the requisite changes).”85 They 

 
                                                                                                                 
 81. Zakon Ukrayiny pro harantii derzhavy shchodo vykonannya sudovyx rishen’ [Law 
of Ukraine on Guarantees of the State Concerning the Enforcement of Court Decisions], 
OFITSIYNYY VISNYK UKRAYINY [OFFICIAL JOURNAL OF UKRAINE], 2012 No. 49, Item 1919, 
[hereinafter Law No. 4901-VI], archived at http://perma.cc/HYZ9-5P7Z.  
 82. Id. 
 83. See infra Section VIII.  
 84. See, e.g., Ihor Bilyk, Garantii derzhavy shchodo vykonannya sudovykh rishen’ 
[State Guarantees regarding Execution of Court Decisions], Soter Law Firm, August 2, 2012, 
archived at http://perma.cc/Z33E-MF52; Nadia Dobryanska & Andrey Meleshevich, The 
Rule of Law and the Case Law of the European Court of Human Rights on the Execution of 
Court Decisions in Ukraine, 77 NAT’L U. OF KYIV-MOHYLA ACAD. REV., LEGAL STUD. 37, 
37-43 (2008).  
 85. PHILIP LEACH ET AL., RESPONDING TO SYSTEMIC HUMAN RIGHTS VIOLATIONS: AN 



282 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
observe that involuntary resistance has thus far been more common than 
voluntary resistance. With this in mind, they suggest that the pilot judgment 
procedure may be more effective for cases regarding specific issues—such 
as Broniowski v. Poland, which was brought by a group of people who had 
not received compensation for property lost in World War II—than for 
endemic problems like non-enforcement.86 

In cases of voluntary resistance, or absent political will to reform, 
both political and institutional conditions play a role. National authorities 
may be particularly reluctant to cooperate with the European Court of 
Human Rights “if the alleged violation is a politically sensitive one or one 
that may set the state apart as one that grossly violates human rights.”87 
Thus, states’ responses may depend in part on “the estimation of the 
national authorities as to the political and economic advantage in 
cooperation with the Court.”88 Ongoing supervision of the execution of the 
judgment by the Committee of Ministers is particularly important, as it may 
be “sufficiently unpleasant for a minister to have to explain and justify the 
failings of the national authorities, to provide a clear incentive” to support 
legislative or political reform.89 A pilot judgment can serve as a catalyst for 
national-level reform, by drawing international attention to a problematic 
category of cases and thereby placing pressure on national authorities.90  

Much also depends on the commitment and level of knowledge of the 
professionals working in the government agencies responsible for 
interaction with the European Court of Human Rights. The individuals 
working in the Government Agent’s office, parliament, the judiciary, other 
government ministries, civil society and the media, and the extent of their 
“awareness and in-depth understanding of the European Convention,” are 
critical in determining the national response.91 Christos Pourgourides, the 
Chair of the Committee on Legal Affairs and Human Rights of PACE, 
argues that national parliaments, as democratically elected bodies “are 
uniquely placed to scrutinize the actions of government so as to ensure the 
swift and effective implementation of the Court judgments.”92 States “with 

                                                                                                                 
ANALYSIS OF ‘PILOT JUDGMENTS’ OF THE EUROPEAN COURT OF HUMAN RIGHTS AND THEIR 
IMPACT AT NATIONAL LEVEL 178 (2010). 
 86. Id. at 177.  
 87. Janneke Gerards, The Pilot Judgment Procedure Before the European Court of 
Human Rights as an Instrument for Dialogue, CONSTITUTIONAL CONVERSATIONS 9-10 
(2011).  
 88. Id. at 10. 
 89. Id. at 16. 
 90. Francoise Tulkens, A Typology of the Pilot-Judgment Procedure, 2 CROSSROADS: 
THE MACEDONIAN FOREIGN POL’Y J. 131 (2010). Judge Tulkens, the European Court of 
Human Rights judge from Belgium and current Vice-President of the Court, specifically 
cites the Olaru v. Moldova case an as example of a pilot judgment that compelled national 
authorities to act.  
 91. LEACH ET AL., supra note 85, at 179.  
 92. Pourgourides, 7th Report, supra note 20, ¶ 195. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 283 
 
strong implementation records are frequently characterized by strong 
participation of parliamentary actors in the implementation process” of 
Strasbourg Court judgments.”93 In addition to the political inclinations of 
national leaders, changes in national parliaments and administrations as 
well as institutional knowledge, or the lack thereof, can have a significant 
influence on a state’s response to the European Court of Human Rights. 

Which factors explain Ukraine’s failure to respond to the European 
Court of Human Rights? The following sections analyze the root causes of 
persistent non-enforcement in Ukraine and the structural and political 
aspects impeding reform. Unpacking the Ukrainian response to Ivanov 
demonstrates that the lack of reform stems from three factors: the specifics 
of the social, economic, and administrative institutions in modern Ukraine, 
the budgetary system, and the absence of political will. 

V. RESTRICTIONS ON THE FORCED SALE OF DEBTORS’ ASSETS 

One of the primary causes of the failure to enforce judicial decisions 
in Ukraine is the legislation governing the sale of state assets and protecting 
certain debtors from financial responsibility. Former Ombudsman Nina 
Karpacheva emphasizes that non-enforcement stems from “above all, the 
restrictions set forth in the procedure for the enforcement of the court’s 
decisions on state-owned enterprises and utilities,”94 and stresses that the 
“state does not propose ways to ensure the rights of citizens in these 
cases.”95 In Ivanov, the failure to enforce the original court decision 
requiring Ivanov’s military unit to pay his retirement sum and uniform 
compensation was connected to a moratorium on the forced sale of state 
assets.96  

In November of 2001, the Verkhovna Rada adopted the law On 
Introduction of a Moratorium on Forced Sale of Property, which, for the 
purpose of “ensuring the economic security of the state,” prohibits the 
forced sale of property of state enterprises or any enterprises in which the 
State holds at least a 25% stake.97 The moratorium was imposed 

 
                                                                                                                 
 93. Pourgourides, 7th Report, supra note 20, ¶ 197. 
 94. NINA KARPACHEVA, THE STATE OF OBSERVANCE OF THE EUROPEAN STANDARDS ON 
HUMAN RIGHTS AND FREEDOMS IN UKRAINE, SPECIAL REPORT OF THE UKRAINIAN 
PARLIAMENT COMMISSIONER FOR HUMAN RIGHTS 39 (2010), archived at 
http://perma.cc/KM8A-RP9U. 
 95. Nina Karpacheva, Shchorichna dopovid’ Upovnovazhenoho Verkhovnoyi Rady 
Ukrayiny z prav ludyny pro stan dotrymannya ta zakhystu prav i svobod lyudyny v Ukrayini 
[Annual Report of the Ombudsman to the Verkhovna Rada of Ukraine on the State of 
Human Rights in Ukraine], OMBUDSMAN OF THE VERKHOVNA RADA OF UKRAINE FOR HUMAN 
RIGHTS 21 (2010), archived at http://perma.cc/SKS7-RQN3. 
 96. Yuriy Nikolayevich Ivanov v. Ukraine, 2009 Eur. Ct. H.R. ¶ 14. 
 97. Zakon Ukrayiny, Pro vvedennya moratoriyu na prymusovu realizatsiyu majna [Law 
of Ukraine on the Introduction of a Moratorium on the Forced Sale of Assets], VIDOMOSTI 



284 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
indefinitely98 and remains in effect at the time of writing of this article. In a 
case where such an enterprise does not have sufficient funds in its accounts 
to respond to a judgment—as was the case with the debtor military unit in 
Ivanov—neither the court nor the bailiffs have any means of enforcing the 
decision. 

In 2003, forty-seven members of parliament brought a petition to the 
Constitutional Court of Ukraine arguing that the 2001 Law on Moratoriums 
made it practically “impossible for the State Execution Service to 
implement court decisions of a proprietary nature.”99 However, in its 
judgment on October 6, 2003, the Constitutional Court ruled that this law 
was constitutional. The Constitutional Court’s decision raised eyebrows, as 
“this moratorium violate[d] at least two constitutional principles: the rule of 
law and equality of all forms of property.”100 

A second protected sector is the energy and fuel industry. According 
to the 1999 Law of Ukraine On Enforcement Proceedings, any enforcement 
proceedings of court decisions must be suspended if the debtor is a fuel or 
energy enterprise seeking to resolve its debts through the procedure 
established in the Law of Ukraine On Measures to Ensure the Stable 
Operation of Enterprises of the Fuel and Energy Complex.101 According to 
the latter law, if a fuel or energy company wants to resolve its debts, it can 
register on a list of fuel and energy enterprises kept by the Ministry of Fuel 
and Energy, after which it is generally exempt from state debt collection 
procedures.102 

The scope of companies included on the registry is wide. Nazar 
Kulchytsky, the Government Agent of Ukraine to the European Court of 
Human Rights, explains that the list includes “all companies, mines, all 

                                                                                                                 
VERKHOVNOI RADY UKRAINY [VVR] No. 10, Item 77 (2002), archived at 
http://perma.cc/H5AK-H53L.  
 98. Id.  
 99. Rishennya Konstytutsiynoho Sudu Ukrayiny u spravi za konstytutsiynym 
podannyam 47 narodnyx deputativ Ukrayiny shchodo vidpovidnosti Konstitutsyi Ukrayiny 
Zakonu Ukrayiny “Pro vvedennya moratoriyu na prymusovu realizatsiyu mayna” [Decision 
of the Constitutional Court of Ukraine in the Case of the Constitutional Petition of 47 
People’s Deputies of Ukraine Concerning the Conformity with the Constitution of Ukraine 
of the Law of Ukraine “On the Introduction of a Moratorium on the Forced Sale of Assets”], 
no.11-rp/2003, June 10, 2003, OFITSIYNYY VISNYK UKRAYINY [OFFICIAL JOURNAL OF 
UKRAINE], No. 25, Item 1217 (2003), archived at http://perma.cc/NN5J-BBZK, English 
summary archived at http://perma.cc/HQN8-GN3V.  
 100. Dobryanska & Meleshevich, supra note 84, at 41. 
 101. Zakon Ukrayiny “Pro vykonavche provadzhennya” [Law of Ukraine on 
Enforcement Proceedings], VIDOMOSTI VERKHOVNOI RADY UKRAINY [VVR] No. 24, Item 
207 (1999), archived at http://perma.cc/R9D3-CLEN.  
 102. Zakon Ukrayiny “Pro zakhody, spryamovani na zabezpechennya staloho 
funktsionuvannya pidpryemstv palyvno-enerhetychnoho kompleksu” [Law of Ukraine on 
Measures to Ensure the Sustainable Operation of Enterprises of the Fuel and Energy 
Complex], VIDOMOSTI VERKHOVNOI RADY UKRAINY [VVR] No. 33, Item 430 (2005), 
archived at http://perma.cc/NSN3-FZE9.  



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 285 
 
energy sectors or sectors related to this, and even entities which cooperate 
with such enterprises.”103 Enterprises included on the registry “could be 
absolutely private, but the state’s bailiffs cannot do anything to execute 
judgments.”104 The law on the fuel and energy complex, which seeks to 
protect these sectors because of their importance to the national economy, 
makes it legally impossible for a citizen to recoup arrears or other debts 
from an energy company, even with a court judgment.105 Some experts 
believe that this legislation was forced through by the owners of energy and 
fuel companies in their own personal interest, and violates the Constitution 
by effectively placing the fuel and energy complex outside the reach of the 
law.106 

One example, described by Ombudsman Nina Karpacheva, provides 
insight into the extent of the debt of the fuel and energy complex. In 2010, 
the energy company Donetskoblenergo had an outstanding debt of over 800 
million hryvnia—around 80 million euro—out “because Donetskoblenergo 
[was] an enterprise of the fuel and energy sector, the enforcement 
proceedings of court judgments [were] suspended.”107 Another exception 
regards companies with property in the Chernobyl exclusion zone, as 
Ukrainian law prohibits the sale of property in the exclusion zone without 
specific government permission.108 Several former employees of 
Atomspetsbud, a state-owned construction company that worked in the 
Chernobyl exclusion zone after the nuclear accident, have brought and won 
cases at the European Court of Human Rights concerning the failure to 
enforce judgments of Ukrainian courts.109 The Ukrainian Helsinski Human 
Rights Union sums up the situation thusly: “When individuals owe money 
any property can be taken away in lieu. When the debtor is a State-owned 

 
                                                                                                                 
 103. Interview by Carolyn Forstein with Nazar Kulchytsky, Government Agent of 
Ukraine to the European Court of Human Rights, in Kyiv, Ukr. (Feb. 3, 2012).  
 104. Id.  
 105. Mykhailo Honchar & Maksym Alinov, Energy Debt: Cancellation of (Non) 
Responsibility, WEEKLY MIRROR (Kyiv), May 27, 2011, at 19, archived at 
http://perma.cc/K7GD-UFM2. 
 106. See, e.g. Anton Kutz, Untouchable Cast, or Fuel and Energy Enterprises, LEGAL 
WEEKLY (Kyiv), Jan. 26 - Feb. 1, 2010, at 4 archived at http://perma.cc/K824-TJ75; see also 
Honchar & Alinov, supra note 105. 
 107. Karpacheva, supra note 95, at 22.  
 108. Zakon Ukrayiny “Pro pravovyy rezhym terytorii, shcho zaznala radioaktyvnoho 
zabrudnennya vnaslidok chornobyl’skoyi katastrofy” [Law of Ukraine on the Legal Status of 
the Territory of Radioactive Contamination Resulting from the Chornobyl Catastrophe], 
VIDOMOSTI VERKHOVNOI RADY URSR [VVR] 1991 No. 16, Item 198, archived at 
http://perma.cc/6YT2-8X29.  
 109. Mykhaylenky and Others v. Ukraine, 2004 Eur. Ct. H.R. 153; Derkach and Palek v. 
Ukraine, 2004 Eur. Ct. H.R., archived at http://perma.cc/5C7E-LSP8; Gaponenko v. 
Ukraine, 2006 Eur. Ct. H.R., archived at http://perma.cc/V45V-YPER; Ishchenko and 
Others v. Ukraine, 2005 Eur. Ct. H.R., archived at http://perma.cc/R2WN-CVQB; Sharenok 
v. Ukraine, 2005 Eur. Ct. H.R., archived at http://perma.cc/MSD2-9TLS.  



286 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
enterprise, it is virtually impossible to recoup any debt.”110  

The European Court of Human Rights has made it clear through its 
case law on non-enforcement that a state enterprise’s lack of funds does not 
excuse it from the responsibility to respond to a court judgment.111 As the 
existing Ukrainian law makes it impossible to force entities to sell their 
assets, the European Court of Human Rights stressed that the state should 
bear responsibility for these debts.112 While the state budget includes a 
specific allocation for the enforcement of judgments of the court, it does not 
currently designate any funding for the enforcement of domestic decisions 
in which the financial liability falls on the state.113 

The Ukrainian authorities have previously discussed legislative 
efforts aimed at resolving these legal issues. In several of the 
communications between the Ukrainian government and Committee of 
Ministers prior to the pilot judgment, as described in the previous section, 
the government reported developing draft laws removing the moratorium on 
the forced sale of state assets, but to date it remains in place.114 On 
December 4, 2007, draft law No. 1105 On Making Amendments to the Law 
of Ukraine ‘On Restoring a Debtor’s Solvency or Declaring his 
Bankruptcy’ (on the order of priority of claims for satisfaction for salary 
arrears) was introduced in the Verkhovna Rada seeking to change the law 
suspending execution in the event of bankruptcy or liquidation 
procedures.115 However, shortly after Viktor Yanukovych claimed victory 
in Ukraine’s 2010 presidential election, the newly-formed pro-presidential 
majority in the Rada voted this bill down on May 13, 2010, and to date “the 
problem remains unsolved.”116 

On February 11, 2010, the outgoing Cabinet of Ministers under Prime 
Minister Yulia Tymoshenko approved Resolution 222-p, which laid out a 
plan to address the systemic issues causing widespread non-enforcement.117 
 
                                                                                                                 
 110. Maxim Shcherbatyuk & Volodymyr Yavorsky, UHHRU: No Optimism Over New 
Draft Law on State Guarantees Regarding Enforcement of Court Rulings, UKRAINIAN 
HELSINKI HUMAN RIGHTS UNION (May 10, 2011), archived at http://perma.cc/BA7E-RHTJ.  
 111. Shmalko v. Ukraine, 2004 Eur. Ct. H.R. ¶¶ 44, 57, archived at 
http://perma.cc/D4GN-SWZV. 
 112. Shmalko ¶¶ 43-46.  
 113. Shcherbatyuk & Yavorsky, supra note 110.  
 114. See Draft Law No. 9127, supra note 69. 
 115. Property Rights, in HUMAN RIGHTS IN UKRAINE 2009-2010, HUMAN RIGHTS 
ORGANIZATIONS REPORT 234, 244 (Yevhen Zakharov, ed., 2011), archived at 
http://perma.cc/9MFR-Q5NH.  
 116. Id.  
 117. Kabinet Ministriv Ukrayiny Rozporyadzhennya 222-p “Pro zatverdzhennya planu 
pershocherhovykh zakhodiv shchodo usunennya nedolikiv systemnoho kharakteru, shcho 
pryzvodyat’ do nevykonannya rishen’ natsional’nykh sudiv” [Resolution of the Cabinet of 
Ministers of Ukraine 222-p on Approval of the Plan of Priority Measures to Address 
Systemic Defects Resulting in Non-Enforcement of Rulings of National Courts], Feb. 11, 
2010, archived at http://perma.cc/6R6C-T5LT. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 287 
 
According to this resolution, the draft law on the budget for 2010 was 
supposed to designate funds for compliance with the European Court of 
Human Rights’ pilot judgment, but the budget law that was ultimately 
adopted did not provide for these expenses.118 The Kharkiv Human Rights 
Protection Group reports that the Ministry of Labor and Social Policy noted 
this omission and stressed the “need to provide additional funds for the 
enforcement of court rulings” in the process of making amendments to the 
final law on the 2010 budget, but the amendments were not approved.119 
Moreover, the Cabinet of Ministers’ resolution noted the need for draft laws 
which would amend existing laws on limiting the forced sale of debtors’ 
property, regulate enforcement of rulings of national courts against the state 
or state institutions, and protect creditors’ rights.120 Although several draft 
laws were submitted in 2009 regarding these issues, they were recalled on 
March 11, 2010 by the new Cabinet of Ministers formed under Prime 
Minister Mykola Azarov according to article 105 of The Law on the Rules 
of Procedure of the Verkhovna Rada of Ukraine.121  

VI. BUDGETARY SHORTFALLS AND THE SYSTEM OF SOCIAL BENEFITS 

The second underlying cause of systemic non-enforcement in Ukraine 
is the country’s expansive system of social benefits. The Ukrainian 
Constitution and legislation entitle numerous categories of people to 
benefits, a system inherited from Ukraine’s Soviet past. By 2011, there 
were approximately 120 categories of beneficiaries, of which 45 were based 
on social needs, and 57 on work or professional grounds.122 At least 15 
million Ukrainian citizens were entitled to benefits in 2011, and these 
benefits total between 3.8 and 5.8 billion US dollars per year.123 Of this, 
however, only a fraction is paid. Nazar Kulchytsky, the current 
commissioner of Ukraine to the European Court of Human Rights, 
explained that “in practice, it is not possible to pay all these benefits,” so 
“people receive no payments, they go to court, [the] court delivers its 
judgments and obliges [the] state to pay all these amounts, but since they 
are not provided in the state budget it is not possible to execute” the 
 
                                                                                                                 
 118. Id.  
 119. Property Rights, supra note 115, at 242. 
 120. Resolution of the Cabinet of Ministers of Ukraine 222-p on Approval of the Plan of 
Priority Measures to Address Systemic Defects Resulting in Non-Enforcement of Rulings of 
National Courts, supra note 117. 
 121. According to Article 105 of the Law on the Rules of Procedure of the Verkhovna 
Rada of Ukraine, a draft of a law introduced by the Cabinet of Ministers is considered to be 
void if it has not been passed in the first reading by the time this Cabinet quits office. See 
Law No. 1861-VI, on the Rules of Procedure of the Verkhovna Rada of Ukraine, February 
10, 2010 (Ukr.), archived at http://perma.cc/NUS7-J27L. 
 122. Shcherbatyuk & Yavorsky, supra note 110.  
 123. Shcherbatyuk & Yavorsky, supra note 110.  



288 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
decisions.124 As a result, the state debt continues to grow year by year, 
while new rounds of judgments go unenforced. Yevhen Zakharov, the 
director of the Kharkiv Human Rights Protection Group, emphasized that 
the creation of many of the existing categories of beneficiaries was a form 
of “populism” designed to win support for politicians, and that to 
substantively reform the system of social payments, the government would 
have to target certain categories and eliminate others.125 

In response to this issue, the Cabinet of Ministers of Ukraine instated 
regulations that authorize the government to adjust the annual amounts of 
social benefits, depending on the funds allocated for this purpose in the 
state budget. For example, the Law on the State Budget for 2012 states that 
the social benefits for veterans, children of war, Chernobyl liquidators, and 
many other categories of citizens eligible for social assistance will be 
determined by the Cabinet of Ministers of Ukraine “within available 
financial resources.”126 

A group of members of parliament opposed this principle, and 
challenged the Law on the State Budget for 2011 in the Constitutional 
Court.127 In the past, the Constitutional Court had repeatedly found that any 
government efforts to cut social benefits violated article 22 of the Ukrainian 
Constitution.128 In December 2011, the Constitutional Court reversed its 

 
                                                                                                                 
 124. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103. 
 125. Interview by Carolyn Forstein with Yevhen Zakharov, Director, Kharkiv Human 
Rights Protection Group, in Kharkiv, Ukr. (Mar. 3, 2012).  
 126. Zakon Ukrayiny “Pro Derzhavnyi byudzhet Ukrayiny na 2012 rik” [Law of Ukraine 
on the State Budget of Ukraine for 2012], VIDOMOSTI VERKHOVNOI RADY UKRAYINY [VVR] 
2012,No. 34-35, Item 414, archived at http://perma.cc/JUU2-X35N. 
 127. Rishennya Konstytutsiynoho Sudu Ukrayiny u spravi za konstytutsiynymy 
podannyamy 49 narodnykh deputativ Ukrayiny, 53 narodnykh deputativ Ukrayiny, i 56 
narodnykh deputativ Ukrayiny shchodo vidpovidnosti Konstytutsyi Ukrayiny punktu 4 
rosdilu VII “Prykintsevi Polozhennya” Zakonu Ukrayiny “Pro Derzhavnyi byudzhet 
Ukrayiny na 2011 rik” [Decision of the Constitutional Court of Ukraine in the Case of the 
Constitutional Petitions of 49 People’s Deputies of Ukraine, 53 People’s Deputies of 
Ukraine, and 56 People’s Deputies of Ukraine Concerning the Conformity with the 
Constitution of Ukraine of Item 4 of Chapter VII “Final Provisions” of Law of Ukraine on 
the State Budget of Ukraine for 2011], OFITSIYNYY VISNYK UKRAYINY [OFFICIAL JOURNAL 
OF UKRAINE] 2012 No. 3, Item 100, Dec. 26, 2011, [hereinafter Constitutional Court State 
Budget Case for 2011], archived at http://perma.cc/CU2F-W8A7, English summary 
archived at http://perma.cc/Y5QC-NDRD. 
 128. See, e.g., Rishennya Konstytutsiynoho Sudu Ukrayiny u spravi za konstytutsiynymy 
podannyamy 54 narodnykh deputativ Ukrayiny shchodo vidpovidnosti Konstytutsyi 
Ukrayiny (konstytutsiinosti) polozhen statei 44, 47, 78, 80 Zakonu Ukrayiny “Pro 
Derzhavnyy byudzhet Ukrayiny na 2004 rik” ta konstytutsiynym podannyam Verkhovnoho 
Sudu Ukrayiny shchodo vidpovidnosti Konstytutsyi Ukrayiny (konstytutsiinosti) polozhen 
chastyn dryhoi, tretyoi, chetvertoi statti 78 Zakonu Ukrayiny “Pro Derzhavnyy byudzhet 
Ukrayiny na 2004 rik” (Sprava pro zupynennya dii abo obmezhennya pil’g, kompensatsiy i 
garantiy) [Decision of the Constitutional Court of Ukraine in the Case of the Constitutional 
Petitions of 54 People’s Deputies of Ukraine Concerning the Conformity with the 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 289 
 
stance.129 For the first time in its own history, the Constitutional Court ruled 
that social payments should be dependent on the socio-economic resources 
of the state, thereby granting the Cabinet of Ministers the ability to reduce 
social benefits based on the need to proportionally balance the social 
security of the population and the financial capacity of the state.130 In 
another decision on January 25, 2012, concerning the Pension Fund, the 
Constitutional Court again justified this distribution of power based on 
proportionality and the need to balance the budget.131 

                                                                                                                 
Constitution of Ukraine (Constitutionality) of the Provisions of Articles 78.2, 78.3 and 78.4 
with the Law of Ukraine on Ukraine’s State Budget for 2004 (the Case on Suspension or 
Restriction of Benefits, Compensations and Guarantees)], OFITSIYNYY VISNYK UKRAYINY 
[OFFICIAL JOURNAL OF UKRAINE] 2004 No. 50, Item 3289, Dec. 30, 2004, archived at 
http://perma.cc/9ZLB-4B4K, English summary archived at http://perma.cc/LM8C-E932; 
Rishennya Konstytutsiynoho Sudu Ukrayiny u spravi za konstytutsiynym podannyam 
Verkhovnogo Sudu Ukrayiny ta 50 narodnykh deputativ Ukrayiny shchodo vidpovidnosti 
Konstytutsyi Ukrayiny (konstytutsiinosti) polozhen abzatsiv tretyoho, chetvertoho punktu 13 
rozdilu XV “Prykintsevi Polozhennya” Zakonu Ukrayiny “Pro zagal’noobovyazkove 
derzhavne pensiyne strakhuvannya” ta ofitsiynoho tlumachennya polozhennya chastyny 
tretyoi statti 11 Zakonu Ukrayiny “Pro status suddiv” (Sprava pro riven pensii i 
shchomisyachnoho dovichnoho groshovoho utrymannya) [Decision of the Constitutional 
Court of Ukraine in the Case of the Constitutional Petitions of the Supreme Court of Ukraine 
and 50 People’s Deputies of Ukraine on Conformity with the Constitution (Constitutionality) 
of Paragraphs 13.3 and 13.4 of Section XV “Final Provisions” of the Law of Ukraine “On 
General Mandatory State Pension Insurance” and the Official Interpretation of Provisions of 
Article 11.3 of the Law of Ukraine on Status of Judges (Case on the Pension Level and 
Lifetime Monthly Monetary Allowance)], OFITSIYNYY VISNYK UKRAYINY [OFFICIAL 
JOURNAL OF UKRAINE] 2005 No.42, Item 2662, Nov. 2, 2005, archived at 
http://perma.cc/NBQ6-N6TQ, English summary archived at http://perma.cc/WF9T-3YAR; 
Rishennya Konstytutsiynoho Sudu Ukrayiny u spravi za konstytutsiynym podannyam 
Verkhovnogo Sudu Ukrayiny shchodo vidpovidnosti Konstytutsyi Ukrayiny 
(konstytutsiinosti) okremykh polozhen statti 36, punktiv 20, 33, 49, 50 statti 71, statei 97, 98, 
104, 105 Zakonu Ukrayiny “Pro Derzhavnyi byudzhet Ukrayiny na 2007 rik” (Sprava pro 
garantii nezalezhnosti suddiv) [Decision of the Constitutional Court of Ukraine in the Case 
of the Constitutional Petition of the Supreme Court of Ukraine as to the Conformity with the 
Constitution of Ukraine (Constitutionality) of Separate Provisions of Article 36, Items 20, 
33, 49, 50 of Article 71, Articles 97, 98, 104, 105 of the Law of Ukraine on the State Budget 
of Ukraine for 2007 (Case on Guarantees of Independence of Judges)], OFITSIYNYY VISNYK 
UKRAYINY [OFFICIAL JOURNAL OF UKRAINE] 2007 No. 54, Item 2184, Aug. 03, 2007, 
archived at http://perma.cc/4YMU-BTKW, English summary archived at 
http://perma.cc/4FKV-LGL7. 
 129. Constitutional Court State Budget Case for 2011, supra note 127. 
 130. Constitutional Court State Budget Case for 2011, supra note 127. 
 131. Rishennya Konstytutsiynoho Sudu Ukrayiny u spravi za konstytutsiynym 
podannyam pravlinnya Pensiynoho fondu Ukrayiny shchodo ofitsiynoho tlumachennya 
polozhen statti 1, chastyn pershoyi, druhoyi, tretyoi statti 95, chastyny druhoyi statti 96, 
punktiv 2, 3, 6 statti 116, chastyny druhoyi statti 124, chastyny pershoyi statti 129 
Konstytutsiyi Ukrayiny, punktu 5 chastyny pershoyi statti 4 Byudzhetnoho Kodeksu 
Ukrayiny, punktu 2 chastyny pershoyi statti 9 Kodeksu Administrativnoho Sudochynstva 
Ukrayiny v systemnomu zv’yazku z okremnymy polozhennyamy Konstytutsiyi Ukrayiny 
[Decision of the Constitutional Court of Ukraine in the Case of the Constitutional Petition of 



290 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 

The issue is both legally and politically controversial. Vsevolod 
Rechytsky, a constitutional expert with the Kharkiv Human Rights 
Protection Group, explains that while the Constitutional Court’s decision 
appears reasonable and logical from an economic perspective, it creates 
“insoluble contradictions” in legal terms.132 Article 22 of the Ukrainian 
Constitution states that “the content and scope of the existing rights and 
freedoms shall not be diminished by an adoption of new laws or by 
introducing amendments to the effective laws,” thereby prohibiting the 
government from eliminating or decreasing any types of social 
assistance.133 Rechytskyi argues that the socio-economic rights enshrined in 
the constitution are “designed not for the free market, capitalism and 
freedom, but for the planned economy, state ownership and distributive 
economic system,” one which guarantees set levels of social benefits, 
regardless of economic development and performance.134 To effectively 
reform the system of social protection, the government would have to 
amend the Constitution, and go far beyond simply reducing benefit amounts 
based on the yearly budget. 

In both of the above decisions, the Constitutional Court referred to 
European Court of Human Rights case law to justify its position, citing 
Airey v. Ireland and Kyartan Asmudson v. Iceland.135 However, the 
Constitutional Court overlooked important conclusions and implications of 
the European Court of Human Rights’ rulings. While the European Court of 
Human Rights acknowledged the connection between the provision of 
socio-economic rights and the financial capabilities of the state, it also 
noted that the application of rules concerning this relationship should not 
create a disproportionate balance between individual human rights and the 
general interest.136 In addition, it is not just individual rights at stake, but the 
general public interest in the effectiveness the judicial system—the 
cornerstone of any legal system, regardless of the level of financial security 

                                                                                                                 
the Board of the Pension Fund of Ukraine Concerning Official Interpretation of the 
Provisions of Articles 1, 95.1, 95.2, 95.3, 96.2, 116.2, 116.3, 116.6, 124.2, 129.1 of the 
Constitution, 4.1.5 of the Budget Code of Ukraine, 9.1.2 of the Code of Administrative 
Proceedings of Ukraine in Systematic Connection with Some Provisions of the Constitution], 
OFITSIYNYY VISNYK UKRAYINY [OFFICIAL JOURNAL OF UKRAINE], 2012 No. 11, Item 422, 
Jan. 25, 2012 [hereinafter Constitutional Court Pension Fund Case], archived at 
http://perma.cc/M6EQ-5ULM, English summary archived at http://perma.cc/WA4C-DD8G.  
 132. Constitutional Process in Ukraine: 2011-Early 2012, Current Trends and Summary, 
in HUMAN RIGHTS IN UKRAINE 2010-2011, HUMAN RIGHTS ORGANIZATIONS REPORT 19, 28 
(Yevhen Zakharov, ed., 2012) [hereinafter Constitutional Process in Ukraine]. 
 133. KONSTYTUTSIYA UKRAYINY [CONSTITUTION OF UKRAINE] June 28, 1996, art. 22, 
archived at http://perma.cc/3VTA-WHVS.  
 134. Constitutional Process in Ukraine, supra note 132, at 28.  
 135. Constitutional Court State Budget Case for 2011, supra note 127, at 4; 
Constitutional Court Pension Fund Case, supra note 131, at 4. 
 136. Kyartan Asmudson v. Iceland, 2004 Eur. Ct. H. R. § 45; Airey v. Ireland, 32 Eur. 
Ct. H.R. (ser. A) § 26 (1979). 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 291 
 
of the state. 

The proposed cut in benefits was strongly criticized by civil society 
and sparked protests across Ukraine. In September 2011, in response to the 
government’s proposal to reduce benefits, thousands of veterans of the 
Soviet war in Afghanistan and the cleanup of the Chernobyl nuclear disaster 
picketed in front of the Verkhovna Rada in Kyiv.137 Public outrage 
continued throughout the fall. On November 15, 2011, dozens of Chernobyl 
veterans went on hunger strike in Donetsk, while hundreds more gathered 
in protest.138 In Kyiv, thousands of protestors repeatedly gathered to protest 
the proposed cuts, at one point storming the gates of the Verkhovna Rada, 
and another thirty veterans went on hunger strike.139 The protests in Kyiv 
and smaller actions in Kharkiv were spurred onwards by clashes between 
the Donetsk protestors and local police, where the hunger strike only ended 
when the local administration promised to pay the veterans’ benefits in full 
for the months of November and December.140 Following the above-
mentioned Constitutional Court decisions, some 100 Chernobyl liquidators 
held a multi-day protest on Kharkiv’s Freedom Square in January 2012.141  

VII. POLITICAL WILL 

The Ukrainian government’s persistent failure to craft and pass 
legislation seeking to ensure the enforcement of court decisions reflects the 
structural nature of the problem, but also stems from an obvious lack of 

 
                                                                                                                 
 137. Ukrainian Veterans Protest Planned Cuts in Benefits, RADIO FREE EUROPE/RADIO 
LIBERTY (Sept. 20, 2011), http://www.rferl.org/content/ukrainian_veterans_protest_planned_ 
cut_in_benefits/24334723.html, archived at http://perma.cc/VDK5-T7Y9.  
 138. Ukrainian Pensioners Attack Donetsk Governor’s Office, RADIO FREE 
EUROPE/RADIO LIBERTY (Nov. 28, 2011), http://www.rferl.org/content/ukrainian_pensioners 
_attack_donetsk_governors_office/24404893.html, archived at http://perma.cc/ZS92-6PCM.  
 139. Chornobyl Cleanup Workers Protest Cancellation of Social Benefits, KYIV POST 
(Nov. 1, 2011), http://www.kyivpost.com/news/politics/detail/116051/, archived at 
http://perma.cc/KX92-8JNQ; Ukrainians Rally In Kyiv To Support Donetsk Protesters, 
RADIO FREE EUROPE/RADIO LIBERTY (Nov. 30, 2011), http://www.rferl.org/content/ 
ukrainians_rally_in_kyiv_to_support_donetsk_protesters/24406928.html, archived at 
http://perma.cc/9632-354G; Ukrainian Protestors Start ‘Dry’ Hunger Strike, RADIO FREE 
EUROPE/RADIO LIBERTY (Dec. 8, 2011), http://www.rferl.org/content/ukrainian_protesters_ 
start_dry_hunger_strike/24416056.html, archived at http://perma.cc/9WCB-S5U9.  
 140. Ukrainian Hunger Strikers End Protest After Pledge of Payments, RADIO FREE 
EUROPE/RADIO LIBERTY (Dec. 12, 2011), http://www.rferl.org/content/ukrainian_ 
chornobyl_cleanup_hunger_strikers_end_payments_pledge/24419853.html, archived at 
http://perma.cc/R5LE-VPFU.  
 141. Yulia Zhuravl’ova, U Kharkovi Chornobyl’tsi Vystupayut’ Proti Rishennya 
Konstytutsiynoho Sudu shchodo Sotsial’nyx Vyplat [In Kharkov Chornobyl Veterans Oppose 
the Decision of the Constitutional Court on Social Benefits], RADIO SVOBODA (Jan. 27, 
2012), http://www.radiosvoboda.org/content/article/24465639.html, archived at 
http://perma.cc/J55V-EP9C. 



292 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
political will on the side of the Ukrainian government. The challenge of 
reforming ingrained institutions, namely state-owned enterprises and the 
system of social benefits, is a legacy of communism shared by many post-
Soviet countries.142 In Ukraine, the interests of the political elite and the 
composition of the country’s economy have stymied any serious effort to 
address these issues. 

This gridlock is particularly evident in relation to the current 
moratoriums on the forced sale of assets of state-owned or energy-related 
companies. Nazar Kulchytsky explains that “most entities which are 
protected by different moratoriums have a powerful lobby among all 
parliamentary factions, and it is not a secret that many of them are either 
owned directly by members of the Ukrainian parliament or are in their 
sphere of interests.”143 These deputies have no interest in removing the 
moratoriums or establishing a mechanism which would effectively hold 
companies responsible for their debts, and thus might have an impact on 
deputies’ personal financial interests. Under the current system, companies 
“can make debts, and then the state will pay for the debts,” causing a large 
strain on the state budget but none on the individual finances of 
politicians.144  

There are also significant political incentives to delay any reform of 
the benefits system. Cutting social benefits is enormously unpopular among 
the Ukrainian population, and elections are still meaningful in Ukraine. 
This undoubtedly impacted the failure to pass any reform prior to both the 
2010 presidential and the 2012 parliamentary elections. Although many 
benefits often go unpaid, citizens are aware of their legal rights, including 
their right to apply to the European Court of Human Rights, and feel 
morally entitled to formally qualify for such benefits, even if they often fail 
to receive them in practice.145 The Ukrainian Helsinski Human Rights 
Union argues that  

[g]iven the lack of funding for these benefits even at the 
present time when the law clearly establishes their size and 
everyone has the opportunity to defend their rights in court, 
it is entirely clear that the way out of the situation proposed 
by the Cabinet of Ministers is a means of avoiding liability 

 
                                                                                                                 
 142. See, e.g., HILARY APPEL, EUR. UNION CTR. OF CAL., INTERNATIONAL IMPERATIVES 
AND TAX REFORM: LESSONS FROM POSTCOMMUNIST EUROPE (2003), archived at 
http://perma.cc/38TK-QBEC; Kim Lane Scheppele, A Realpolitik Defense of Social Rights, 
82 TEX. L. REV. 1921 (2004); Andrey Meleshevich et al., Juristocracy and the Protection of 
the Second-Generation Positive Rights by the Constitutional Court of Ukraine, 103 NAT’L U. 
OF KYIV-MOHYLA ACAD. REV., LEGAL STUD. 1, 13-20 (2008).  
 143. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103. 
 144. Id.  
 145. See supra Part VI (discussing protests in response to proposed budget cuts). 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 293 
 

for not implementing the socio-economic rights and their 
guarantees stipulated by law.146  

This policy would allow the government not only to cut the amount of 
social benefits available to the population but also to reduce the number of 
categories of social benefits, and thus the number of potential European 
Court of Human Rights cases, without addressing the fundamental systemic 
failure to enforce court decisions. Moreover, individual deputies could thus 
blame decreases in benefit payments on the budget rather than their own 
initiatives. 

Another factor is the sheer expense of the guaranteed benefits. It is 
simply less expensive for the government to fail to fulfill legal obligations 
and only settle debts with those individuals who take their cases to court, 
than to pay all of its existing debts. Volodomyr Yavorsky, the former 
chairman of the Ukrainian Helsinski Human Rights Union, explained that 
many individuals do not pursue their cases through all possible legal 
measures, with only a small fraction actually taking their cases to the 
European Court of Human Rights, at which point the government is often 
willing to pay.147 While “expenses for the government are getting bigger 
and bigger from year to year, for example for parliament, for the president 
and for the Cabinet of Ministers,” these actors now “want to cut all 
expenses on social payments.”148 Yavorsky argues that if the government is 
seeking to balance the budget, they should “cut all payments, not only to the 
people.”149 In order to maintain the current wide scope of social benefits 
and both fully fund them and ensure the enforcement of court decisions, the 
government would have to cut funds elsewhere, which would likely hurt 
politicians’ individual financial interests. 

Looking at Ukraine’s history of legislative reform, the larger political 
context also plays an important role. When Yanukovych and the Azarov 
government came to power, existing draft laws and past proposals were 
scrapped, even though the Yushchenko government had been discussing the 
issue of non-enforcement for years.150 Additionally, certain actors within 
the government appear more committed to reform than others. Ivanna 
Ilchenko at the Ministry of Justice estimated that around 70 percent of the 
proposals drafted by the Ministry of Justice are not considered by 

 
                                                                                                                 
 146. Maxim Shcherbatyuk & Volodymyr Yavorsky, New Draft Bill on Enforcement of 
Court Rulings, Same Old Problems, UKRAINIAN HELSINKI HUMAN RIGHTS UNION (Sept. 26, 
2011, archived at http://perma.cc/RD2Q-BBHQ). 
 147. Interview by Carolyn Forstein with Volodymyr Yavorsky, Director, Ukrainian 
Helsinki Human Rights Union, in Kyiv, Ukr., (Jan. 20, 2012).  
 148. Id.  
 149. Id.  
 150. See e.g., Law No. 1861-VI, supra note 121. 



294 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
parliament.151 The Ukrainian Helsinski Human Rights Union noted that the 
Ministry of Labor unsuccessfully pushed for enforcement of court decisions 
to be its own line in the state budget.152 Even if specific actors in the 
government work for reform, they can succeed only if political will exists in 
parliament. Given the current dominance of the Party of Regions in every 
branch of government, this will must stem at least in part from President 
Yanukovych and his political organization.153  

Lastly, the timidity of the European and international communities 
has impacted Ukraine’s response. Since the fall of 2011, international 
attention has focused on the trial and sentence of Yulia Tymoshenko, with 
multiple European leaders condemning the verdict as politically motivated 
and urging the Ukrainian government to secure her release.154 
Comparatively little criticism has focused on the persistent problem of non-
enforcement of judicial decisions and Ukraine’s contempt for the pilot 
judgment, despite the fact that this issue is at the heart of rule of law 
development, and that Ukraine has ignored Europe’s premier human rights 
body. While international pressure is not always successful—as 
demonstrated by Tymoshenko’s continued imprisonment—the lack of 
international attention or any repercussions from the Council of Europe has 
made it easier for the Ukrainian government to drag its feet on reform.  

VIII. DRAFT LAW № 9127 AND LAW № 4901-VI 

The Ukrainian government introduced draft law № 9127 On 
Guarantees of the State Concerning the Execution of Court Decisions in the 
Verkhovna Rada in September of 2011 as a response to the Ivanov pilot 
judgment.155 The Rada adopted Law of Ukraine № 4901-VI of the same 
name in May of 2012.156 These two documents had significant fundamental 
 
                                                                                                                 
 151. Interview by Carolyn Forstein with Ivanna Ilchenko, Lawyer, Ministry of Justice of 
Ukraine, in Kyiv, Ukr. (Feb. 2, 2012).  
 152. Property Rights, supra note 115, at 242. 
 153. See, e.g., Mykhailo Minakov, Foundation for Good Politics, Ukraine’s Political 
Development in 2012-2013, (May 17, 2013, archived at http://perma.cc/LHZ5-TBW6). 
 154. See, e.g., Maria Danilova, Ukraine’s Tymoshenko Sentenced to 7 Years in Jail, THE 
WASHINGTON TIMES (Oct. 11, 2011, archived at http://perma.cc/7MAA-AAXQ); Steven 
Pifer, Ukraine, Europe and Tymoshenko: Does Yanukovych Get It?, BROOKINGS (Sept. 19, 
2011, archived at http://perma.cc/4JEE-28KS).  
 155. See Draft Law No. 9127, supra note 69; Proyekt Zakony pro harantyi derzhavy 
shchodo vykonannya sudovyx rishen [Draft Law on Guarantees of the State Concerning the 
Enforcement of Court Decisions], KARTKA ZAKONOPROYEKTU [RECORD OF THE DRAFT LAW] 
(Sept. 8, 2011), available at http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=41092. 
 156. See Law No. 4901-VI, supra note 81; Zakon Ukrayiny “Pro Harantyi Derzhavy 
shchodo Vykonannya Sudovyx Rishen” [Law of Ukraine “On Guarantees of the State 
Concerning the Enforcement of Court Decisions”], OFITSIYNYY VISNYK UKRAYINY 
[OFFICIAL JOURNAL OF UKRAINE], 2012 No. 49, Item 1919, July 6, 2012, [hereinafter Law 
No. 4901], archived at http://perma.cc/MC96-9TW4.  



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 295 
 
differences. While draft law № 9127 was reviewed by the Committee of 
Ministers of the Council of Europe, and included several important 
provisions called for by the European institutions, the majority of these 
provisions were not included in Law № 4901-VI.157 Although at the time of 
this study it is impossible to offer final or even interim conclusions about 
the impact of this law on the enforcement of court decisions, a preliminary 
study of the law shows that it does not address several obstacles to effective 
enforcement, and possibly creates a legal conflict and additional problems. 

Draft law No. 9127 consisted of two sections: “Peculiarites [sic] of 
Execution of Court Decisions” and “Concluding Provisions.”158 As noted 
above, the bill contained several important provisions, which the Council of 
Europe had long urged Ukraine to introduce.159 First, article 3 of the the 
first section, “Peculiarites [sic] of Execution of Court Decisions,” expressly 
identified the government agency responsible for enforcing court decisions 
concerning debts owed by public bodies, a gap which had been the source 
of substantial confusion and inefficiency.160 According to the draft law, 
these responsibilities should “be carried out by the State Treasury Service 
of Ukraine within appropriate budget allocations by debiting funds from a 
State authority[’s] accounts, and in the absence of designated allocations of 
this State authority—with funds provided by [the] budget program for the 
execution of court decisions.”161 

Second, article 5 of this same section established the government’s 
responsibility for prolonged non-enforcement of court decisions, and 
procedures for the payment of compensation for delays. According to the 
draft law, in the event that the State Treasury Service of Ukraine failed to 
transfer payment awarded by a court decision within three months, the 
prevailing party would receive compensation for the delay “in the amount 
of 3% per annum [of the] unpaid amount . . . at the expense of the budget 
program for the execution of court decisions.”162  

Third, the bill’s second section, “Concluding Provisions,” 
acknowledged that the law “On Introducing a Moratorium on the Forced 

 
                                                                                                                 
 157. Id.  
 158. The English translations of the section titles and articles of the draft law are from a 
translation of the law provided by the Government Agent of Ukraine to the European Court 
of Human Rights to the Council of Europe. Letter from the Government Agent of Ukraine to 
the European Court of Human Rights (July 30, 2012), archived at http://perma.cc/F9XR-
U5NA. Based on the original Ukrainian, the sections could also be translated as “Aspects of 
Enforcement of Court Decisions,” and “Concluding and Transitional Provisions.” For the 
sake of clarity, we use the translation provided by the Government Agent. 
 159. Comm. of Ministers, Decision Cases No. 24 - Yuri Nikolaevich and Zhovner group 
against Ukraine, CM/Del/Dec (2012) 1136/24 (2012). See also Draft Law No. 9127, supra 
note 69. 
 160. Draft Law No. 9127, supra note 69. 
 161. Draft Law No. 9127, supra note 69. 
 162. Draft Law No. 9127, supra note 69. 



296 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
Sale of State Property,” had expired.163 Fourth, the bill eliminated the 
special rules for the enforcement of court decisions concerning recovery of 
debts from companies included on the fuel and energy complex registry.164 
As Maxim Shcherbatyuk and Volodymyr Yavorsky of the Ukrainian 
Helsinski Human Rights Union emphasized, removing these moratoriums is 
an essential aspect of resolving systemic non-enforcement.165 Fifth, the 
second section obligated the Cabinet of Ministers, within three months from 
the day the law went into effect, to submit bills to the Verkhovna Rada to 
bring other legislative acts in line with the provisions of this law.166  

The most controversial innovation of the second section of the draft 
law was the provision granting the Cabinet of Ministers the right to adjust 
social spending based on the annual budget.167 As described above, the 
bill’s proposed reduction of benefits provoked sharp criticism from civil 
society and nationwide protests.  

Despite the draft law’s shortcomings, the Committee of Ministers of 
the Council of Europe called on the Ukrainian parliament in September of 
2011 to adopt the document in full and without delay.168 However, the 
Verkhovna Rada’s response was both delayed and limited. The draft law 
was passed in its second and final reading nine months later in June of 
2012, in a much reduced form.169 Only the first section of the draft law was 
included, while the second section with the revised title “Concluding 
Provisions” was truncated to two sentences: “[T]his Law enters into force 
on 1 January 2013. The Cabinet of Ministers of Ukraine has until 1 January 
2014 to prepare and submit to the Verkhovna Rada of Ukraine proposals for 
amendments to laws of Ukraine, arising as a result of this Law.”170 

In contrast to the draft law, Law No. 4901-VI did not discuss lifting 
the moratoriums on the forced sale of property of public companies or 
entities included on the fuel and energy complex registry.171 Instead of a 
period of three months, the Law grants the Cabinet of Ministers a full year, 
through January 1, 2014, to submit draft legislation to parliament to bring 

 
                                                                                                                 
 163. Draft Law No. 9127, supra note 69. 
 164. Draft Law No. 9127, supra note 69. 
 165. Shcherbatyuk & Yavorsky New Draft, supra note 146. 
 166. Draft Law No. 9127, supra note 69. 
 167. Draft Law No. 9127, supra note 69. 
 168. Comm. of Ministers, Interim Resolution Execution of the Pilot Judgment of the 
European Court of Human Rights Yuriy Nikolaevich Ivanov Against Ukraine and of 386 
Cases Against Ukraine Concerning the Failure or Serious Delay in Abiding by the Final 
Domestic Courts’ Decisions Delivered Against the State and its Entities as well as the 
Absence of an Effective Remedy, CM/ResDH (2011) 184 (2011), archived at 
http://perma.cc/34Z-5525. 
 169. See Law No. 4901-VI, About Guarantees of the State Concerning Execution of 
Judgments, June 5, 2012 (Ukr.). 
 170. Id. 
 171. See Law No. 4901-VI, supra note 81. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 297 
 
other existing laws into conformity with the provisions of Law No. 4901-
VI.172 Nothing is mentioned about bringing legal acts of the Cabinet of 
Ministers into compliance with Law No. 4901-VI.173 This preliminary 
analysis of the Law of Ukraine On Guarantees of the State Concerning the 
Enforcement of Court Decisions suggests that the law not only fails to 
remove some of the key obstacles to effective enforcement of Ukrainian 
court decisions, but also fails to establish a timeline or basis for addressing 
them in the future. 

The circumstances under which the law was passed further explain 
the differences between the bill and the subsequent law. As argued in the 
next section, the haste and context in which Law No. 4901-VI was passed 
indicate that a primary reason for its passage, in this form, was to 
demonstrate the Ukrainian government’s responsiveness to the Council of 
Europe, rather than to establish an effective mechanism for the enforcement 
of court decisions.  

According to the transcript of a parliamentary session held on June 5, 
2012, First Deputy Chairman Adam Martynyuk acknowledged this factor in 
an address to members of parliament concerning the law in consideration:  

Dear colleagues, we now have to consider a very 
interesting ‘archaic’ draft law (9127), on guarantees of the 
state concerning the enforcement of court decisions. This is 
its second reading . . . I will explain, why it is today, 
because tomorrow or the day after there will be the Council 
of Europe’s relevant meeting, where they will consider how 
Ukraine has responded to these questions. And on 
Thursday it will already be too late to consider [the law]. It 
must be considered today, based on the schedule of work of 
the European bodies.174 

Martynyuk also explained that the vote would only concern the first 
part of draft law No. 9127, the section on “Peculiarites [sic] of Execution of 
Court Decisions,” as “we have agreed that we will not consider the 
concluding and transitional [provisions] at all, because these concern 
changes to laws that we do not need to speak about.”175 

Despite this substantive cut, the draft law was not fully prepared in 
time for its second reading, and the final content of the law was not 
 
                                                                                                                 
 172. See Law No. 4901-VI, supra note 81. 
 173. See Law No. 4901-VI, supra note 81. 
 174. Zasidannya Sorok Tretye [43rd Meeting, Evening], Tenth Session of the Verkhovna 
Rada of Ukraine, Sixth Convocation, February-July, 2012. Verbatim Report of Plenary 
Meetings, June 5, 2012, available at http://static.rada.gov.ua/zakon/skl6/10session/ 
STENOGR/05061210_43.htm (alteration added). 
 175. Id. (alteration added). 



298 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
presented to members of parliament. Chairman Martynyuk, with the support 
of Rapporteur MP Dmytro Prytyka, the former head of the Supreme 
Economic Court, criticized this shortcoming in the parliamentary session of 
June 5, 2012, stressing that the committee had been “too lazy to prepare” a 
final, updated draft of the law, and as a result it was “difficult to formulate” 
what exactly he was being asked to vote on.176 

As the draft law was not prepared for a second reading at the time of 
voting, which took place at 4:32 p.m., it received only 57 votes out of a 
possible 450, and was rejected.177 A mere hour and a half after this vote, at 
the suggestion of MP Mykhaylo Chechetov, the Verkhovna Rada decided to 
resume consideration of draft law No. 9127.178 At 6:07 p.m., 259 members 
of parliament voted to pass this draft law in its second and final reading.179 

As might have been expected, the Council of Europe’s reaction to the 
passage of Law No. 4901-VI On Guarantees of the State Concerning the 
Enforcement of Court Decisions was restrained. The Committee of 
Ministers welcomed the passage of this law, and at the same time requested 
that Ukraine send a copy of the text of the law, together with information on 
its entry into force and its compliance with the requirements of the 
European Court of Human Rights’s pilot judgment in the Ivanov case.180 On 
September 19, 2012, the Department for the Execution of Judgments of the 
European Court of Human Rights issued a Memorandum assessing the 
current situation pursuant to the Ivanov judgment and the Zhovner group of 
cases concerning the structural problem of non-enforcement or delayed 
enforcement of domestic judicial decisions.181 Discussing Law No. 4901-VI 
On Guarantees of the State Concerning the Enforcement of Court 
Decisions, the Memorandum noted that many concerns raised by the court 
in its earlier documents regarding the problem of execution of judicial 
decisions in Ukraine “do not appear to have been addressed in the final 
version of the law as adopted.”182 

On September 20, 2012, the Committee of Ministers endorsed the 

 
                                                                                                                 
 176. Id. 
 177. Id. 
 178. Id. 
 179. Id. 
 180. Comm. of Ministers, Communication on the Activities of the Committee of 
Ministers, Report by the Chair of the Committee of Ministers to the Parliamentary Assembly 
(May - June 2012), CM/AS (2012) 5 ¶ 12 (2012), archived at http://perma.cc/Y4SW-BB3F. 
 181. Comm. of Ministers, Case of Yuriy Nikolayevich Ivanov Against Ukraine, and 
Group of Cases of Zhovner Against Ukraine. Pilot Judgment and Group of Cases 
Concerning the Non-Enforcement or Delayed Enforcement of Domestic Judicial Decisions, 
Assessment of the Measures Already Taken and of the Measures Still Envisaged, and 
Memorandum Prepared by the Department for the Execution of Judgments of the European 
Court of Human Rights, CM/Inf/DH (2012) 29 ¶ 1 (2012), https://wcd.coe.int/ViewDoc.jsp? 
id=1978383&Site=CM. 
 182. Id. ¶ 19. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 299 
 
evaluation presented in this Memorandum, “urged the Ukrainian authorities 
once again to take the necessary measures as a matter of utmost urgency in 
order to resolve the problem of non-enforcement” and “invited the 
Ukrainian authorities to provide further and detailed information in the light 
of the above-mentioned memorandum in due time for the 1,157th meeting 
(December 2012).”183 In its reply, the Government of Ukraine attempted to 
address the Memorandum’s concerns and informed the Committee of 
Ministers that, in order to resolve the outstanding problems, the 
Government had “drafted the Law on amendment of the Law On 
Guarantees of the State Concerning the Execution of Court Decisions” 
which would be submitted to the Ukrainian Cabinet of Ministers “in the 
nearest future.”184  

The following Interim Resolution adopted by the Committee of 
Ministers on December 6, 2012, uses the toughest language to date against 
Ukraine. The Committee of Ministers recognizes that since 2004 it “has 
repeatedly called upon the Ukrainian authorities to adopt, as a matter of 
priority, the necessary measures in its domestic legal system” and reaffirms 
“most firmly that the High Contracting Parties to the Convention have 
undertaken to abide by the final judgment of the Court in any case to which 
they are parties and that this obligation is unconditional.”185 The Resolution 
again “urges the Ukrainian authorities to adopt as a matter of utmost 
priority the necessary measures in order to resolve the problem of non-
enforcement of domestic judicial decisions and to fully comply with the 
pilot judgment with no further delay.”186 The Committee of Ministers 
“profoundly deplor[es]” that the pilot judgment “still remains to be fully 
executed and that this situation poses a serious threat to the respect of the 
rule of law and to the effectiveness of the Convention system.”187 

IX. A COMPARISON CASE: RUSSIA 

Just nine months prior to its judgment in Ivanov v. Ukraine, the 
European Court of Human Rights issued a pilot judgment against Russia 

 
                                                                                                                 
 183. Comm. of Ministers, Decision Cases No. 26 - Yuriy Nikolayevich Ivanov and 
Zhovner Group Against Ukraine, CM/Del/Dec (2012) 1150/26 ¶¶ 6-7 (2012), 
http://perma.cc/X82X-7R3K.  
 184. Comm. of Ministers, Communication from Ukraine Concerning the Case of Yuriy 
Nikolayevich Ivanov Against Ukraine (Application No. 40450/04), DH-DD (2012) 1065 ¶ 6 
(2012).  
 185. Comm. of Ministers, Interim Resolution Execution of the Judgments of the 
European Court of Human Rights Yuriy Nikolayevich Ivanov Against Ukraine and the 
Zhovner Group of 389 Cases Against Ukraine Concerning the Non-Enforcement or Delayed 
Enforcement of Domestic Judicial Decisions and the Lack of an Effective Remedy in Respect 
Thereof, CM/ResDH (2012) 234 (2012), archived at http://perma.cc/V6HE-YMRA. 
 186. Id. 
 187. Id. (alteration added).  



300 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
that similarly concerned the systemic non-enforcement of domestic 
judgments. In Burdov v. Russia (No. 2), the court found violations of 
articles 6, 13, and article 1 of protocol 1 of the European Convention, and 
granted Russia six months to set up a new domestic remedy and twelve 
months to resolve all pending cases.188 While Russia exceeded the six-
month deadline, the government passed two new federal laws establishing a 
domestic mechanism and settled all pending cases within a year from the 
day the judgment became final.189 The following section looks at the 
Burdov (No. 2) case and Russia’s response, and contrasts the impact of the 
pilot judgment procedure on Russia with its impact on Ukraine.  

Anatoliy Burdov, the applicant in Burdov v. Russia (No. 2), is a 
Russian national who was called up by the Soviet authorities to assist in the 
emergency cleanup of the Chernobyl nuclear disaster.190 Burdov was not 
new to the European Court of Human Rights; his first case, Burdov v. 
Russia, was the very first court judgment issued against Russia.191 Burdov 
worked at the Chernobyl site for three months between October 1986 and 
January 1987, where he “suffered from extensive exposure to radioactive 
emissions.”192 As a result, he was entitled to social payments in 
compensation for the damage to his health. Burdov repeatedly failed to 
receive these payments on time and in full, and sued the relevant state 
authorities multiple times beginning in 1997.193 The Russian domestic 
courts repeatedly found in his favor, but several of their judgments went 
unenforced for significant periods of time.  

The first Burdov v. Russia case was decided on May 7, 2002.194 The 
court found violations of article 6 and of article 1 of protocol No. 1, “on 
account of the authorities’ failure for years to take the necessary measures 
to comply” with the domestic court decisions issued in Burdov’s favor.195 
However, although the Russian authorities compensated him for the delays 
in enforcement mentioned in the European Court of Human Rights case and 
initiated several administrative reforms to address the issues underlying the 
violations, Burdov continued to face delays in receiving his social 
benefits.196 He again pursued legal action, resulting in five new domestic 
decisions in the Shakhty Town Court in his favor beginning in 2003.197 
 
                                                                                                                 
 188. Burdov v. Russia (No. 2), 2009 Eur. Ct. H.R., archived at http://perma.cc/LK8A-
ZHLR. 
 189. EUR. CT. HUM. RTS., PRESS UNIT, PILOT JUDGMENTS: FACTSHEET 3 (2013), archived 
at http://perma.cc/3W5E-GHLV. 
 190. Burdov (No. 2) ¶ 7. 
 191. Burdov (No. 2) ¶ 9. 
 192. Burdov (No. 2) ¶ 7. 
 193. Burdov (No. 2) ¶ 9. 
 194. Burdov (No. 2) ¶ 9. 
 195. Burdov (No. 2) ¶ 9. 
 196. Burdov (No. 2) ¶ 11-21. 
 197. Burdov (No. 2) ¶¶ 11-21. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 301 
 
These decisions concerned ongoing delays in payments, payment of interest 
for past delays between 1999 and 2001, raises in his monthly allowances for 
food and health compensation, and compensation for more recent delays in 
payments.198 In the first three cases, it took over a year for the judgment to 
be executed in full, while the last two, both issued in 2007, were enforced 
within seven months.199 

The European Court of Human Rights found that the length of the 
delays in enforcing the first three judgments constituted violations of article 
6 and article 1 of protocol 1, while the last two judgments were enforced in 
reasonable periods of time.200 As in the Ivanov judgment, the court 
emphasized that neither “[t]he complexity of the domestic enforcement 
procedure or of the State budgetary system,” nor the “lack of funds or other 
resources” could be cited as justifications for the failure to enforce a 
judgment.201 Burdov did not complain under article 13, but the European 
Court of Human Rights, noting that many of the past and pending cases 
concerning non or delayed enforcement complained about the lack of an 
effective domestic remedy, decided to consider and found a violation of 
article 13.202 The court concluded that “there was no effective domestic 
remedy, either preventive or compensatory, that allows for adequate and 
sufficient redress in the event of violations of the Convention on account of 
prolonged non-enforcement of judicial decisions delivered against the State 
or its entities.”203  

The persistence of this issue led the court to apply the pilot judgment 
procedure, noting that over 200 previous judgments against Russia 
concerned the same issues and that prolonged non-enforcement continued 
to impact a large number of people in Russia.204 In the Burdov (No. 2) 
judgment, the European Court of Human Rights set a deadline of six 
months for Russia to “introduce a remedy which secures genuinely effective 
redress” for individuals whose domestic court decisions go unenforced, and 
twelve months to resolve over 700 cases “concerning similar facts” which 
were currently pending at the European Court of Human Rights.205 The 
court also decided to adjourn any new cases concerning non-enforcement 
for one year.206  

 
                                                                                                                 
 198. Burdov (No. 2) ¶¶ 11-21. 
 199. Burdov (No. 2) ¶¶ 11-21. 
 200. Burdov (No. 2) ¶¶ 86, 88. 
 201. Burdov (No. 2) ¶ 70. 
 202. Burdov (No. 2) ¶¶ 89, 117. 
 203. Burdov (No. 2) ¶ 117. Burdov also complained about discrimination under article 
14, but this complaint was rejected by the court. 
 204. Burdov (No. 2) ¶ 122. 
 205. Burdov (No. 2) ¶¶ 133, 141-146. 
 206. Burdov (No. 2) ¶¶ 143. 



302 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 

X. RUSSIA’S HISTORY OF NON-ENFORCEMENT 

Like Ukraine, prior to being issued a pilot judgment, Russia had long 
acknowledged and discussed the systemic problems of delayed and non-
enforcement of domestic judgments, internally and with the Council of 
Europe.207 However, both the nature of the problem in Russia and Russia’s 
past actions and attempts at reform differed from the situation in Ukraine. 
Following the original Burdov case in May 2002, Russia, in addition to 
fulfilling the individual measures towards Burdov, enforced over 5000 
similar domestic judgments concerning allowances for Chernobyl victims 
and “improved its budgetary process to ensure that the necessary budgetary 
means are allocated to social security bodies.”208 In April 2004, a Russian 
law entered into force establishing a new system of indexation, under which 
the allowances owed to Chernobyl victims are calculated based on the 
inflation rate, rather than on the less predictable cost of living index used 
previously.209 In December 2004, the Committee of Ministers adopted a 
resolution observing that “the more general problem of non-execution of 
domestic court decisions in the Russian Federation [was] being addressed 
by the authorities, under the Committee’s supervision, in the context of 
other pending cases” and resolved to conclude monitoring the 
implementation of the Burdov judgment.210 

Over the next few years, the Russian government implemented 
several significant reforms addressing systemic non-enforcement. In 2005, 
a new federal law added a chapter to the Budgetary Code to include a 
special execution procedure for judgments against the state and state-
financed entities, which made the Federal Treasury responsible for 
judgments against entities funded by the state budget, and the Ministry of 
Finance for those against the state itself.211 The following year, in October 
 
                                                                                                                 
 207. Comm. of Ministers, Non-Enforcement of Domestic Judicial Decisions in Russia: 
General Measures to Comply with the European Court’s Judgments, CM/Inf/DH (2006) 19 
rev3 ¶¶ 1-5 (2007), archived at http://perma.cc/KFJ8-Q2RF.  
 208. Comm. of Ministers, Appendix to Resolution Concerning the Judgment of the 
European Court of Human Rights of 7 May 2002 (Final on 4 September 2002) in the Case of 
Burdov Against the Russian Federation, ResDH (2004) 85 (2004), archived at 
http://perma.cc/99R4-LPFN.  
 209. Id. 
 210. Id. 
 211. Non-Enforcement of Domestic Judicial Decisions in Russia: General Measures to 
Comply with the European Court’s Judgments, supra note 207, ¶ 4; Federal’nyi Zakon RF o 
vnesenii izmeneniy v Byudzhetnyy Kodeks Rossiiskoi Federatsii, Grazhdanskiy 
Protsessual’nyy Kodeks Rossiiskoi Federatsii, Arbitrazhnyy Protsessual’nyy Kodeks 
Rossiiskoi Federatsii i Federalnyy Zakon ‘Ob ispolnitel’nom proizvodstvye’ [Federal Law of 
the Russian Federation on Amending the Budgetary Code of the Russian Federation, the 
Code of Civil Procedure of the Russian Federation, the Arbitration Code of the Russian 
Federation, and the Federal Law ‘On Enforcement Proceedings’], ROSSIISKAIA GAZETA 
[ROS. GAZ.] Dec. 30, 2005, No. 3965.  



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 303 
 
2006, high-level officials from the Russian judicial, legal, and law 
enforcement systems attended a roundtable held at the Council of Europe in 
Strasbourg to discuss non-enforcement.212 Two important legislative 
reforms were then adopted in 2007. In October, a new Federal Law On 
Enforcement Proceedings came into effect.213 The Ministry of Finance and 
the Treasury also revised administrative procedures to improve the 
enforcement process.214 The Committee of Ministers praised Russia for 
these reforms, noting that they reflected the Committee’s own 
recommendations, while cautioning that they had not appeared to fully 
remedy non-enforcement.215 

A 2007 memorandum of the Committee of Ministers on Russia, 
similar to the 2007 memorandum on Ukraine, examines the root causes of 
non-enforcement and efforts taken to address them. The Russian 
memorandum notes that the Russian authorities recognized the 
Committee’s concerns, and acknowledged that the main obstacle was not 
insufficient funding but “complicated budgetary relations between the 
federal authorities and the authorities of the subjects of the Russian 
Federation.”216 Primary responsibility for enforcement of judgments 
changed multiple times between 1997 and 2005, shifting first from the 
bailiffs service to the regional bodies of the Ministry of Finance, and finally 
to the federal level Ministry of Finance. Administrative problems, such as 
“inefficiencies within the bailiff system, a lack of coordination between 
domestic agencies and the domestic court’s failure to clearly identify the 
debtor,” all hindered the practical enforcement of judgments.217 Moreover, 
issues with disbursement of payments, namely that “relevant authorities 
lack[ed] funds and there [was] confusion regarding administrative 

 
                                                                                                                 
 212. Non-Enforcement of Domestic Judicial Decisions in Russia: General Measures to 
Comply with the European Court’s Judgments, supra note 207, ¶ 5. 
 213. Federal’nyi Zakon RF ob ispolnitel’nom proizvodestvye [Federal Law of the 
Russian Federation on Enforcement Proceedings], ROSSIISKAIA GAZETA [ROS. GAZ.] Oct. 6, 
2007, No. 4486; Comm. of Ministers, Interim Resolution Execution of the Judgments of the 
European Court of Human Rights in 145 Cases Against the Russian Federation Relative to 
the Failure or Serious Delay in Abiding by Final Domestic Judicial Decisions Delivered 
against the State and its Entities as well as the Absence of an Effective Remedy, CM/ResDH 
(2009) 43 (2009), archived at http://perma.cc/7MDH-RW2Q. 
 214. Philip Leach et al., Can the European Court’s Pilot Judgment Procedure Help 
Resolve Systemic Human Rights Violations? Burdov and the Failure to Implement Domestic 
Court Decisions in Russia, 10 HUM. RTS. L. REV. 346, 349 (2010). 
 215. Comm. of Ministers, Interim Resolution Execution of the Judgments of the 
European Court of Human Rights in 145 Cases Against the Russian Federation Relative to 
the Failure or Serious Delay in Abiding by Final Domestic Judicial Decisions Delivered 
against the State and its Entities as well as the Absence of an Effective Remedy, CM/ResDH 
(2009) 43 (2009), archived at http://perma.cc/QC2M-PUK2. 
 216. Comm. of Ministers, Non-Enforcement of Domestic Judicial Decisions in Russia: 
General Measures to Comply with the European Court’s Judgments, supra note 207, ¶ 4.  
 217. Leach et al., supra note 214, at 348. 



304 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
procedures to claim the necessary funds from the Ministry of Justice,” 
further held up execution.218 

The issue continued to attract attention from top authorities in the 
Russian government. In his 2007 report, Vladimir Lukin, the Commissioner 
for Human Rights of the Russian Federation, stressed that without 
unconditional execution of court decisions “the system of legal justice 
would transform to legal fiction.”219 He criticized the widespread perception 
“not only in society but also in government bodies” that domestic 
judgments are merely “non-compulsory recommendations.”220 In our 
opinion, the report clearly noted awareness of the non-enforcement 
problem—extending even to some judgments of the Constitutional Court—
among authorities in Russia. Discussions took place in all federal circuits 
between December 2006 and March 2007 with representatives from both 
regional governments and the presidential administration, and these 
meetings developed the idea of “setting up a national filter mechanism that 
would allow for examination of Convention complaints at the domestic 
level.”221 The Commissioner emphasized that “joint efforts should be 
deployed with a view to eliminating the roots of the problem rather than 
simply reducing the number of complaints.”222 

Former Russian President Dmitry Medvedev also publicly 
emphasized the prevalence and endemic nature of non-enforcement. In an 
address to the Federal Assembly in November 2008, Medvedev specifically 
attributed the problem to the “lack of real accountability on the part of 
officials together with citizens themselves who neglect to execute court 
decisions” and called for the creation of a domestic mechanism to 
compensate citizens who had faced undue delays in execution of court 
decisions.223 A Moscow-based public interest lawyer, Olga Shepeleva, also 
pinpointed the lack of accountability as the main factor in an interview with 
British scholars Philip Leach, Helen Hardman, and Svetlana Stephenson.224 
Shepeleva stressed that, although multiple institutions are responsible for 
guaranteeing enforcement, “in practice none of them takes the lead.”225 She 
further explained that the execution of judgments providing compensation 
 
                                                                                                                 
 218. Leach et al., supra note 214, at 348. 
 219. Vladimir Lukin, Doklad Upolnomochennoho po pravam cheloveka v Rossiyskoy 
Federatsii za 2007 god [Report of the Ombudsman for Human Rights in the Russian 
Federation for 2007], ¶ 7.6, Rossiaskaya Gazeta, Mar. 14, 2008 archived at 
http://perma.cc/5ZJX-8WE2. 
 220. Id.; accord Burdov v. Russia (No. 2), 2009 Eur. Ct. H.R., archived at 
http://perma.cc/LK8A-ZHLR. 
 221. Burdov (No. 2) ¶ 25.  
 222. Id. ¶ 25. 
 223. Dmitry Medvedev, President of Russia., Address to the Federal Assembly of the 
Russian Federation (Nov. 5, 2008), archived at http://perma.cc/8SDU-AQ2G. 
 224. Leach et al., supra note 214, at 352. 
 225. Leach et al., supra note 214, at 353. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 305 
 
against public authorities are rarely prioritized by regional governments, as 
“the regional authorities lack the necessary funds to pay these sums,” since 
“regional taxes are mostly channeled into the federal budget.”226 While 
administrative confusion and uncertainty were clearly responsible for some 
of the problems in enforcing domestic decisions, the lack of personal 
liability also played a large role.  

In 2008, two draft laws addressing non-enforcement were introduced 
in the Duma. The first, the Compensation Bill, sought to set up “a domestic 
legal remedy in respect of violations of the rights to judicial proceedings 
within a reasonable time and to the execution of an enforceable judicial 
decision within a reasonable time.”227 The bill provided that courts of 
general jurisdiction could consider these violations, outlined procedures for 
such a challenge, and specified that the Ministry of Finance would be the 
defendant.228 The second draft law amended other legislative acts, thereby 
establishing the Federal Treasury as responsible for providing 
compensation for damages found in such cases.229 The Russian Supreme 
Court, which decided to submit these bills to the Duma in September 2008, 
also described in an attached memorandum “the needs for additional 
budgetary allocations to ensure the implementation of the Compensation 
Bill,” taking into account that the average amount awarded per case by the 
European Court of Human Rights was around €3,050.230 When the court 
issued its judgment in the Burdov v. Russia (No. 2) case on January 15, 
2009, these bills remained in the Duma.231 Notably, in February 2009 the 
Russian judge in the European Court of Human Rights, Anatoliy Kovler, 
emphasized the need for reform but criticized the bills as having been “cut 
to the roots” and no longer serving as effective solutions.232 

XI. RUSSIA’S RESPONSE TO THE PILOT JUDGMENT 

The Russian response to the pilot judgment was relatively cooperative 
and proactive, although it did exceed one of the set deadlines. The judgment 
became final on May 4, 2009, after which Russia had six months to set up a 
new domestic remedy and twelve months to resolve all pending cases.233 
 
                                                                                                                 
 226. Leach et al., supra note 214, at 353. 
 227. Burdov v. Russia (No. 2), 2009 Eur. Ct. H.R. ¶ 35, archived at 
http://perma.cc/LK8A-ZHLR. 
 228. Id. 
 229. Id. ¶ 37. 
 230. Id. ¶ 36.  
 231. Id. ¶¶ 34-37. 
 232. Leach et al., supra note 214, at 355.  
 233. Execution of the Judgment of the European Court of Human Rights Burdov No. 2 
Against the Russian Federation Regarding Failure or Serious Delay in Abiding by Final 
Domestic Judicial Decisions Delivered Against the State and its Entities as well as the 
Absence of an Effective Remedy, supra note 15. 



306 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
Although November 4, 2009 came and went with no legislative reform, in 
April of 2010 the Duma passed two new federal laws that entered into force 
on May 4, 2010, the day the court was set to resume consideration of the 
cases that had been adjourned for the previous year.234 Law FZ-68 “On 
Compensation for a Violation of the Right to a Trial within a Reasonable 
Time or the Right to the Enforcement of a Judgment within a Reasonable 
Time,” known as the “Compensation Act,” established the required 
domestic remedy, while FZ-69 amended other legislative acts.235 Following 
the pilot judgment, the Russian government also immediately began 
working to resolve the pending similar cases through ad hoc means, and 
“examined all applications within the time limits set by [the] Court.”236 In 
total, the European Court of Human Rights struck out 785 applications that 
the Russian authorities successfully resolved domestically.237  

The Committee of Ministers and the European Court of Human 
Rights both positively assessed the measures taken by Russia in response to 
the Burdov (No. 2) judgment. In September 2010, the court declared two 
new cases regarding non-enforcement to be inadmissible because of the 
new Compensation Act and referred them back to the domestic level.238 
Perhaps most critical for the effectiveness of the new remedy, the 
Committee of Ministers confirmed that “appropriate funds were allocated to 
the federal budget, budgets of the subdivisions of the Russian Federation 
and local budgets” to guarantee the execution of decisions stemming from 
the Compensation Act.239 From May 2010 to June 2011, Russian courts 
considered 287 complaints about non-enforcement and granted 
compensation in 145 of the cases.240 Following a visit to Russia, Christos 
Pourgourides, the PACE rapporteur for the implementation of European 
Court of Human Rights judgments, acknowledged the efforts to tackle non-
enforcement and other systemic issues offering that “[w]e can now see the 
light at the end of the tunnel.”241 

 
                                                                                                                 
 234. Execution of the Judgment of the European Court of Human Rights Burdov No. 2 
Against the Russian Federation Regarding Failure or Serious Delay in Abiding by Final 
Domestic Judicial Decisions Delivered Against the State and its Entities as well as the 
Absence of an Effective Remedy, supra note 15. 
 235. Comm. of Ministers, Appendix to Interim Resolution, Execution of the Judgment of 
the European Court of Human Rights Burdov No. 2 Against the Russian Federation 
Regarding Failure or Serious Delay in Abiding by Final Domestic Judicial Decisions 
Delivered Against the State and its Entities as well as the Absence of an Effective Remedy, 
CM/ResDH (2011) 293 § 1 (2011), archived at http://perma.cc/3QMJ-BA4W. 
 236. Id. § 2. 
 237. Id. § 2. 
 238. Id. §3. 
 239. Id. § 1(b). 
 240. Id. 
 241. PARLIAMENTARY ASSEMBLY OF THE COUNCIL OF EUR., COMM. ON LEGAL AFFAIRS 
AND HUMAN RIGHTS (2010), archived at http://perma.cc/A4U2-ZEXQ. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 307 
 
XII. UKRAINE AND RUSSIA: DIFFERENT APPROACHES TO ENFORCEMENT OF 

COURT DECISIONS 

Given the systemic nature of non-enforcement, why was Russia able 
to craft, pass, and implement reform following a pilot judgment, while 
Ukraine was not? The answer lies in the specifics of the problem, history of 
cooperation with the Council of Europe, and internal politics of both 
countries. In Russia, as described above, non-enforcement was largely an 
administrative issue, with multiple agencies theoretically responsible for 
enforcement, compounded by a lack of measures to ensure accountability. 
In Ukraine, while administrative issues are present, both the existing 
moratoriums on sale of state assets and energy-related companies and the 
social benefits are directly tied to the financial and political interests of 
politicians. Moreover, Russia had been working for years, in cooperation 
with the Committee of Ministers, to address the underlying issues. Unlike 
Ukraine, which reported the creation of a national plan and draft laws but 
did not actually engage in any legislative reform prior to the pilot judgment, 
Russia passed three major pieces of legislation between 2005 and 2007 
aimed at improving enforcement.242 When it came time to respond to the 
pilot judgment, the Russian authorities had a history of substantive debate 
and consideration of the underlying issues in the judicial, presidential, and 
legislative spheres, which may have made it easier to craft and set up a 
concrete mechanism. Additionally, the Russian government also did not 
experience a major power shake-up, while the 2010 election of Viktor 
Yanukovych and the formation of the new Cabinet led by Mykola Azarov 
in Ukraine led to scrapping past efforts at reform.243  

Reform may also have been easier to achieve in Russia due to the 
country’s finances. In the 2007 memorandum, the Russian authorities 
themselves noted that the issue was not financial but organizational.244 The 
Committee of Ministers, in their 2011 evaluation of the pilot judgment, 
noted that Russia had allocated the necessary budgetary resources to 
enforce any judgments under the Compensation Act.245 In contrast, non-
enforcement in Ukraine is tied to budget shortages, which are reflected 
every year in the large percentage of social benefits which go unpaid and in 
the debate over granting the executive branch the ability to adjust the levels 

 
                                                                                                                 
 242. See supra Part X for a discussion of the 2005 and 2007 reforms to the Budgetary 
Code and the 2007 Federal Law on Enforcement Proceedings.  
 243. See Law No. 1861-VI, supra note 121. 
 244. Non-Enforcement of Domestic Judicial Decisions in Russia: General Measures to 
Comply with the European Court’s Judgments, supra note 207, ¶ 4. 
 245. Execution of the Judgment of the European Court of Human Rights Burdov No. 2 
Against the Russian Federation Regarding Failure or Serious Delay in Abiding by Final 
Domestic Judicial Decisions Delivered Against the State and its Entities as well as the 
Absence of an Effective Remedy, supra note 15. 



308 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
of benefits in proportion to the budget.246 Nazar Kulchytsky, the 
Government Agent of Ukraine to the European Court of Human Rights, 
emphasized the monetary factor, arguing that “Russians didn’t resolve this 
problem, they just have enough money to pay compensation to everyone 
whose right for execution in a reasonable time was violated.”247 He posited 
that the Russian remedy is “going to work for a few years, but when a lot of 
people will find out about this mechanism, and when they will see that it is 
effective, the amount of those compensation [sic] will be much larger than 
the amount of the debt itself,” and “that it’s not possible to make things in 
such a way for a long time.”248 Kulchytsky emphasized with fewer available 
funds, such a solution is not an option for Ukraine.249  

Lastly, another factor in Russia’s response is the political context of 
Russia’s relationship with the European Court of Human Rights. While 
responding to the Burdov (No. 2) judgment may constitute a success, Russia 
has long had a contentious relationship with the court. The court has ruled 
on hundreds of cases from Chechnya and neighboring North Caucasus 
republics concerning violations of article 2, the right to life, or article 3, 
freedom from torture.250 These cases remain partially unenforced, as Russia 
has resisted any general measures related to the Chechen cases, which have 
been the subject of much condemnation by the court.251 Antoine Buyse, a 
Dutch scholar of the court, explained the court’s application of the pilot 
judgment procedure thusly: “[T]o put it mildly, it is no secret that Russia is 
not very happy with the Court’s judgments in the many Chechen cases. No 
surprise then that the Court has found a (somewhat) less sensitive area to 
find a systemic problem.”252 Responding to the pilot judgment 
cooperatively, substantively, and relatively on time may have been a means 
of creating some political goodwill at the Council of Europe towards 
Russia, in the context of years of directed criticism.  

XIII. IMPLICATIONS FOR UKRAINE AND THE  
EUROPEAN HUMAN RIGHTS REGIME 

The Ukrainian and Russian responses to the pilot judgments and to 
the issue of non-enforcement more generally have implications for both 
 
                                                                                                                 
 246. See supra Part VI. 
 247. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103. 
 248. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103. 
 249. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103. 
 250. EUROPEAN COURT OF HUMAN RIGHTS, COUNTRY FACTSHEET, RUSSIA 9, archived at 
http://perma.cc/5LQU-UCSM. 
 251. Id.; Case of Aslakhanova and Others v. Russia, 2013 Eur. Ct. H.R., archived at 
http://perma.cc/ML5B-E49C.  
 252. Antoine Buyse, Pilot Judgment on Russian Non-Enforcement, ECHR BLOG (Jan. 21, 
2009, 11:00 AM), http://echrblog.blogspot.com/2009/01/pilot-judgment-on-russian-
non.html, archived at http://perma.cc/Q3Q3-8QCE. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 309 
 
future domestic reforms and the European system of human rights 
protection. Ukraine’s failure to respond to the Ivanov judgment within the 
time period demonstrates a key weakness of the pilot judgment procedure: 
it is entirely predicated on the national government in question 
implementing reform. Ukraine is the first country to fail to respond and has 
seemingly faced no tangible consequences. Volodymyr Yavorsky recounted 
how even the Council of Europe “was simply surprised” at Ukraine’s 
response, particularly as “even Russia did something.”253 Additionally, the 
hundreds of applicants whose cases were frozen for the period of the pilot 
judgment and were not resolved domestically were effectively denied an 
opportunity to seek justice for over two years. 

At the same time, while Ukraine’s response was scant, the pilot 
judgment pushed the government to consider non-enforcement in a more 
serious light than it had previously. This sentiment has been echoed by 
multiple Ukrainian officials. Kulchytsky emphasized the importance of 
international pressure, describing the pilot judgment as “the only 
possibility” for compelling “our authorities to make some changes.”254 The 
European Court of Human Rights first recognized that non-enforcement 
was an issue in Ukraine over eight years ago, but only after the pilot 
judgment did the government “finally start asking [the Ministry of Justice] 
what the problem is” and what should be done “to change the situation.”255 
Ivanna Ilchenko went further, describing the “incredible impact” of the pilot 
judgment: for over 2000 cases, the government is responsible for paying not 
only “the amount which was owed by the judgment which was not 
executed, but also the amount of penalty from the government for the non-
execution period.”256 While far short of European Court of Human Rights’s 
goal, the Ukrainian government’s settlement of over 1000 of the pending 
cases, and its obligation to compensate applicants not only for the original 
debt but for the delay in enforcement is a concrete result. While these 
statements do not mitigate the extent to which Ukraine failed to meet the 
obligations set forth in the Ivanov judgment, they emphasize the level of 
attention that the decision garnered among the legal professionals in the 
government.  

The Ukrainian and Russian responses to the pilot judgments also 
highlight the continued importance of the European Court of Human Rights 
as a guarantor of human rights, particularly in the countries which produce 
the most applications. This is particularly relevant given the ongoing debate 
about the future of the court. Three high-level meetings of the past few 
years, at Interlaken in 2010, Izmir in 2011, and most recently Brighton in 
 
                                                                                                                 
 253. Interview by Carolyn Forstein with Volodymyr Yavorsky, supra note 147. 
 254. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103. 
 255. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103 (alteration 
added). 
 256. Interview by Carolyn Forstein with Ivanna Ilchenko, supra note 151. 



310 IND. INT’L & COMP. L. REV. [Vol. 24:2 
 
2012, have focused attention on the overwhelming backlog of cases at the 
court, seeking ways to decrease the caseload and improve the effectiveness 
of the court.257 The 2012 Brighton Declaration included several proposals 
for reducing the current and future caseload, and called on the Committee 
of Ministers to “ensure that States Parties quickly and effectively 
implement pilot judgments,” and on states to fulfill their Convention 
obligations.258  

While reducing the court’s caseload is clearly a necessary step 
towards improving the efficiency and functionality of the court, it cannot be 
achieved at the cost of individuals’ human rights. The Ivanov and Burdov 
judgments demonstrate the need for the court to continue to consider 
repetitive article 6 violations, and to continue to attempt to find creative 
solutions to systemic problems such as the pilot judgment procedure. 
Although the pilot judgment mechanism did not work in full in Ukraine, it 
has had a greater impact—as measured by the 1000 plus cases resolved 
domestically—than any other effort to address non-enforcement since 
Ukraine joined the Council of Europe. Though such cases are time 
consuming and repetitive, the European Court of Human Rights stands as a 
last resort for the majority of Ukrainians who take a case to court and find 
that their domestic decisions go unenforced. As the outgoing Commissioner 
for Human Rights for the Council of Europe, Thomas Hammarberg, 
emphasized in a speech at the opening of the 2012 judicial year in 
Strasbourg, “the problem is not that people complain, but that many of them 
have reasons to do so.”259 The failure to enforce judgments is directly tied 
to quality of life and to the rule of law, and though it plays out in small 
numbers and individual experiences, it adds up to a major human rights 
shortcoming, which cannot be abandoned. 

Given the significance of the issue, one takeaway from the Ukrainian 
case may be the need for the Council of Europe to apply increased pressure 
on recalcitrant national governments. The Council of Europe has a number 
of measures at its disposal, which it can use on states which are not living 
up to their obligations, including suspending membership in the 
organization or applying sanctions on a state.260 Nazar Kulchytsky criticized 
the Committee of Ministers for being “afraid to use strong phrases,” 

 
                                                                                                                 
 257. See the reports of the 2010, 2011, and 2012 Interlaken, Izmir, and Brighton 
conferences, supra note 27. 
 258. Council of Eur. High Level Conference on the Future of the European Court of 
Human Rights, Brighton Declaration, ¶ 27 (Apr. 19-20, 2012), available at 
http://hub.coe.int/20120419-brighton-declaration. 
 259. Thomas Hammarberg, Council of Eur. Comm’r for Human Rights, The Court of 
Human Rights Versus the ‘Court of Public Opinion,’ CommDH/Speech (2012) 1 (Jan. 27, 
2012), archived at http://perma.cc/6PWL-Q89A. 
 260. Statute of the Council of Europe, May 5, 1948, arts. 3, 8, archived at 
http://perma.cc/EJA6-JUHT; Pourgourides, 7th Report, supra note 20, ¶ 213. 



2014] ENFORCING JUDICIAL RULINGS IN UKRAINE & RUSSIA 311 
 
explaining that even “when we are telling them it’s not going to work in 
Ukraine in such a way, we need strong formulations, the Committee of 
Ministers also very often is not ready to take such strong steps.”261  

The criticism and public spotlight which has been focused on the 
Yanukovych administration for the Tymoshenko and Lutsenko trials should 
also be applied to non-enforcement, which is just as much a stumbling 
block to rule of law as is a biased judiciary. The government’s failure to 
respond to Ivanov should not be allowed to fly under the radar of the 
international community or dismissed by domestic proponents of rule of 
law, particularly as Ukraine seeks closer economic integration with Europe. 
As Europe considers the future of the Council of Europe and of 
international human rights protection, it should take into account not only 
its ability to serve as a guardian of human rights and a monitor of 
violations, but also its role as an active enforcer. 

 

 
                                                                                                                 
 261. Interview by Carolyn Forstein with Nazar Kulchytsky, supra note 103.