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AGA Partners
11a, ïð. Íàóêè
03028, Êèåâ
Óêðàèíà |
òåë.: +380 (44) 206-06-75
+380 (44) 206-06-76
òåë./ôàêñ: +380 (44) 206-06-75
e-mail: office@agalawyers.org |
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TO STRASBOURG FOR SALARY
Published – Ukrainian Journal of Business Law
Aminat Sulymanova
Managing Partner
AGA Partners Law Firm
Elena Balbekova
Senior associate
AGA Partners Law Firm
To protect human rights is to ensure that people receive some degree of decent, human treatment. People treat laws as a certain bail of human rights’ protection. What serves as such bail in Ukraine? Constitution of Ukraine, having the highest legal force (item 2. Article 8), enunciates that citizens shall have equal constitutional rights and freedoms and shall be equal before the law.(Article 21). Moreover, constitutional rights and freedoms are guaranteed and shall not be abrogated. Therefore, the major human rights stated in general terms in the Constitution of Ukraine are protected by the highest legal force, aren’t they?
Human and civil rights and freedoms are protected by the court (item 1, Article 55), to which we resort to when the constitutional rights and freedoms are breached.
Responsibility to protect human rights resides first and foremost with the states themselves. However, in many cases public authorities and government officials institute policies that violate basic human rights.
What can be done to safeguard human rights when those in power are responsible for human rights violations?
One of the most efficient remedies nowadays in the chain of rights’ protection in Ukraine is offered by the item 3, article 55 of the Constitution, which states that everyone has the right, after using all the national means of legal protection to appeal for the protection of his rights and freedoms to the correspondent international judicial bodies or to the correspondent bodies of the international organizations, a member of which Ukraine.
In Europe the major judicial body created and meant for the consideration of the issues on infringement of the human rights and freedoms fixed in the European Convention for the protection of human rights and fundamental freedoms and the subsequent rendition on the matter is European Court on Human Rights situated in Strasbourg, France, (the Court hereinafter).
Different states have different conceptions of justice, and international coexistence depends on a pluralist ethic whereby each state can uphold its own conception of the good, hence for peaceful coexistence appeared the necessity to implement European-wide the unificated fundamental rights and freedoms by the means of establishing them in the Convention for the protection of human rights.
From the aspect of States’ attitude, to the fact that as a result of the private arguments between employee and employer it can be accused of breach of the human rights, there is another approach to the one and the same thought. The voluntary consent on “double-check” of the State’s mechanisms of human rights protection as internal so external and the possibility of it’s relevant indictment are intended for by the means of the Court’s judgments to reveal and to find “the joint in the armour” and consequently to contribute to the subsequent amendments to the justice system of the State.
However the Court judgments don’t entail the pre-emption of the subsequent actions of the state authorities, if they are in charge of the human rights breach.
A perfect example of one of the Ukrainian “joints in the armour” is series of labor disputes, considered by the Court lately, where the defendant is the State of Ukraine and the applicants are the private persons suffered from the failure of the legislation and the justice system to provide the appropriate protection of there human rights.
The most recent Judgment of the ECHR awarded on April 26, 2005, related to the issue is Judgment in case of Sokur v. Ukraine (Application no. 29439/02).
The circumstances of the case are following:
In 2001 the applicant instituted proceedings in the Novogrodivsky City Court of the Donetsk Region against the “Novogrodivska” Mining Company - a State-owned enterprise - to recover unpaid salary for the years 1998-2000.
On 3 May 2001 the Novogrodivsky City Court found in favour of the applicant and awarded him UAH 7,406.21 in salary arrears and compensation for devaluation. The decision became effective on 14 May 2001 and was sent for execution to the Novogrodivsky City Bailiffs’ Service. However, the decision was not executed, allegedly due to the failure of the Bailiffs’ Service to act in not selling the property of the Mining Company.
In the course of the enforcement proceedings, it was established that on 19 November 1998 the Donetsk Regional Arbitration Court had instituted bankruptcy proceedings against the “Novogrodivska” Mining Company.
The Court declares that the right of access to court includes a right to have a court decision enforced without undue delay.
In the Judgment the Court notes that the Government’s arguments as to the length of the enforcement proceedings in the instant case are based on the financial difficulties of the respondent company and its economic sector, despite State budgetary allocations.
The Court contends that the principal question to be determined is whether the State is responsible for the delay of a few years in the enforcement of the judgment and whether the restrictions preventing enforcement were justifiable and struck a fair balance between the interests of the State and those of the individual.
In these circumstances, the Court considers that by delaying for three years the enforcement of the court’s decision in the applicant’s case, the authorities deprived the provisions of Article 6 § 1 of the Convention of much of their useful effect. The Court finds that the Government has not advanced sufficient justification for this delay.
There has, accordingly, been a violation of Article 6 § 1 of the Convention
The Court considers that State bears responsibility for its non-execution of the court decision. Furthermore, the State Bailiffs’ service initiated execution proceedings and therefore took responsibility for its execution. It also notes that the execution proceedings constitute an integral part of the judicial proceedings. It also observes that the mine at issue is a State-owned enterprise and that the State is responsible for the debts of the legal entities controlled by it financially or administratively.
The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a decision given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6.
The Court generally affirms, that it is not open to a State authority to cite lack of funds as an excuse for not honoring a court’s decision. Admittedly, a delay in the execution of a court’s decision may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1. In the instant case, the applicant should not have been prevented from benefiting from the decision given in his favour, which was of major importance to him, on the ground of the State’s alleged financial difficulties.
Summing up the above-mentioned facts and arguments we shall mention that from the very outset the series of the private labour disputes became a litmus paper at the determination of the pitfalls and explicit problems of the Ukrainian system of justice. The absence of the efficient system of the humans’ rights protection, in particular the execution of the court’s decisions, entails the breach by the State of the obligations assumed by signing the Convention, in particular Article 6 of the Convention.
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