EU Project Pravo-Justice Held the Round Table Dedicated to Judicial Control Over Execution of Judgments

The EU Project Pravo-Justice held a round table "Practices of Administrative Courts Regarding Control Over Execution of Judgments. Development of Judicial Control in Other Types of Proceedings”. There were representatives of the judiciary, namely judges of administrative courts of all instances, representatives of executive authorities, lawyers, state and private enforcement officers, and representatives of the Business Ombudsman Council among speakers and attendants to the event.

The round table started with a welcome speech delivered by Iryna Zharonkina, Property Rights and Enforcement Component Lead of the EU Project Pravo-Justice.

“We have been analyzing the execution of court decisions, and today we would like to look, in more detail, at the nature of judicial control in administrative proceedings; discuss how effective this mechanism is and in what format it can be stretched out to courts of other jurisdictions. Based on the findings of the round table, the EU Project Pravo-Justice will develop recommendations for the necessary legislative changes, which will then be forwarded to the Ministry of Justice of Ukraine and the Verkhovna Rada of Ukraine,” said Iryna Zharonkina.

In his welcome speech addressed to the participants to the event, Mykhailo Smokovych, President of the Cassation Administrative Court stated that the situation with the execution of court decisions is difficult in Ukraine.

“The statistics show that the total amount of unpaid court-ordered debts in Ukraine constitutes more than ¼ of the country’s GDP. No more than 3% of court decisions are executed per year in Ukraine,” said Mykhailo Smokovych while outlining the key problems relating to judicial control that have been encountered by judges of administrative courts.

The President of the Cassation Administrative Court also noted that despite the binding nature of the decisions issued by Ukrainian courts on all entities across the country, with no exception, in practice, state bodies do not comply with court decisions for various reasons. In particular, due to the lack of funds in the state budget.

Nataliia Kovalenko, justice of the Cassation Administrative Court, reported that in almost two years (2021 – November 2022), administrative courts received about 7,500 requests to apply judicial control, with only 2,500 being granted; she also explained the reasons for refusals.

Svitlana Kolesnikova, Deputy Director of Department, Head of Division for Contractual and Analytical Work, Legal Department of the State Treasury Service of Ukraine, developed on the peculiarities and problematic issues of execution of judicial control in respect of state bodies. One of the problematic issues is the lack of budget funds intended for the execution of decisions.

“In our country, judicial control is mostly established in court cases on the recovery of funds under the so-called budget program 3504040. In 2022, 100 million UAH were allocated from the state budget for the execution of decisions under the said program, with 90 million UAH remaining after the budget sequestration. And this despite the fact that the State Treasury has pending court decisions on the recovery of funds in the amount of almost 7 billion UAH,” said Svitlana Kolesnikova.

Vitalii Chepurnyi, Chairman of the Association of Private Enforcement Officers emphasized in his speech the need to reform and improve not only the judiciary, but also the mechanisms of execution, and assessed the practice of using the mechanism of judicial control by courts.

“Practice shows that judicial control often seems to be established not for the purposes of executing a court decision, but for the purposes of exercising control over the EO,” said Vitalii Chepurnyi. Katilin Popov, international expert of the EU Project Pravo-Justice, PEO, Bulgaria, covered European trends in the execution of court decisions.

"In Europe, entrusting the functions of enforcement of decisions to the courts turned out to be both inefficient and ineffective. Even in the jurisdictions like Germany, where the overall average efficiency is much higher than generally in Europe, judicial review has a number of problems. If Ukraine is thinking to rely on courts to oversee the execution of court decisions, it will be out of trend. European countries favor the EOs. It is the EOs, as the first link in the enforcement process, who establish all relevant facts and contribute to the resolution of most disagreements that may exist between the parties within the framework of enforcement proceedings. Only in exceptional cases can the case be referred to the court to establish judicial control,” said Katilin Popov.

Olena Hubska, justice of the Cassation Administrative Court, initiated the discussion on giving the court the opportunity to independently establish judicial control, rather than solely upon the application of an individual.

Oleksandr Sasevych, judge of the Lviv District Administrative Court, member of the Lviv Regional Justice Reform Council, shared statistics that show that in recent years, courts tend to issue more decisions on the application of judicial control, while also pointing to regulatory gaps in governing the judicial control mechanism.

Oleksandr Oliinyk, Director of the Directorate of Justice and Criminal Justice, Ministry of Justice, talked about the legislative developments of the Ministry of Justice of Ukraine regarding the issue of discussion at the round table.

“There is a long-standing structural problem of non-execution or untimely execution of court decisions of national courts; group of cases Ivanov/Burmych. In order to solve it, the National Strategy for Solving the Problem of Non-Execution of Court Decisions, for Which the Debtors are State Bodies, Enterprises, Institutions, or Organizations, for the Period Until 2022, was approved. In order to implement the aforementioned Strategy, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada of Ukraine draft Law of Ukraine No. 7648 “On Amendments to Certain Legislative Acts on Improving the Mechanism of Judicial Control over the Execution of Court Decisions and the Procedure for Establishing or Changing the Method of Execution of Court Decisions”, said Oleksandr Oliinyk.

This draft law amends the Code of Administrative Procedure of Ukraine, the Civil Procedure Code of Ukraine and the Economic Procedure Code of Ukraine. There are five key conceptual novels. The first is the possibility for the court to change the method and order of execution of a court decision, in particular, based on the creditor’s application to change the method and order of execution of a court decision, which is subject to execution in accordance with the Law of Ukraine “On State Guarantees for the Execution of Court Decisions”. The second one consists in the introduction of judicial control over the execution of court decisions in civil and economic proceedings, similarly to the one existing in administrative proceedings. The third one implies the establishment of clear rules for the delineation of jurisdictions in cases of appeal against decisions, actions, or omissions of either SEO, or other official of the State Enforcement Service body, or PEO. The fourth one allows the review of a complaint within one jurisdiction, alongside establishing requirements as to the form and content of a complaint. The fifth one concerns the extension of the term for considering complaints against the decisions, actions, or omissions of either SEO, or other official of the State Enforcement Service body, or PEO, while enforcing a court decision, from ten days to thirty days.

At the same time, Oleksandr Oliinyk also emphasized that the Verkhovna Rada has registered two more draft laws covering issues of judicial control, namely No. 7042 and No. 5310.