Ensuring Enforcement of Judgements through the Prism of Reforming Criminal Provisions
DOI:
https://doi.org/10.6000/1929-4409.2020.09.69Keywords:
Non-enforcement of judgements, Non-compliance with judgments,, Enforcement, Criminalization, Criminal liability, European Court of Human Rights, National court.Abstract
The problem of ensuring the enforcement of judgements is pressing both at the national and global levels. In some countries, judgments are often enforced only in part or with long delays, and sometimes not enforced at all. One of the consequences of non-enforcement of judgements is the application of penalties for the failure to fulfil international obligations. This study intends to identify the main aspects of non-enforcement of judgments in Ukraine and the world and to outline the prospects for criminal law provisions regulating enforcement of national and international judgements on the example of reforming Ukrainian legislation. The object of research is criminal law provisions regulating the enforcement of judgements. The research methodology is due to the specifics of the object, which requires a comprehensive interdisciplinary approach involving a set of general and special methods of scientific cognition. The results of the study are related to the confirmation and refutation of hypotheses on sufficiency of international mechanisms to effectively ensure enforcement of judgements; the need to take certain actions at the national level to ensure the enforcement of judgements; the need for the legislative authorities to take certain actions at the national level; the need for the executive authorities to take certain actions at the national level; reasonability of criminalization of non-enforcement of judgments. The article contains a novelty that has theoretical and practical significance. In particular, the theoretical significance of the obtained results is that it is an original comprehensive study of enforcement of judgements of national and international judicial institutions through the prism of reforming criminal law, and offers a new concept of criminal law enforcement of judgements. The practical significance of the obtained results is that the presented data can serve as a guide for future work in this area, as well as legislative initiatives on criminal law enforcement of judgements in Ukraine and the world
References
Abdelgawad, E. L. 2016. "Dialogue and the Implementation of the European Court of Human Rights’ Judgments." Netherlands Quarterly of Human Rights 34(4):340–363. https://doi.org/10.1177/016934411603400405 DOI: https://doi.org/10.1177/016934411603400405
ACLU. 2018. A Pound of Flesh: The Criminalization of Private Debt. New York: American Civil Liberties Union.
Bezerra, М. Enforcement of Judgements of the International Court of Justice: The Roles of the Court and the Security Council. Retrieved July 20, 2020 (https://www.academia.edu/ 34894273/Enforcement_of_Judgements_of_the_International_Court_of_Justice_The_Roles_of_the_Court_and_the_Security_Council)
Bogonyuk, H. І. 2015. "Foreign Experience of Legislative Regulation of Criminal Liability for Non-Enforcement of a Court Decision." Our Law 5:112-117.
Council of Europe. 2020. Supervision of the Execution of ECHR Judgments - Annual Report 2019 Shows Significant Progress, but Challenges Remain. Retrieved July 20, 2020 (https://www.coe.int/en/web/execution/-/supervision-of-the-execution-of-echr-judgments-annual-report-2019-shows-significant-progress-but-challenges-remain)
Dragan, O. 2017. "The Criminal Responsibility for Non-Fulfilment of Court Decisions: Question of Theory and Practice." Journal of the National Prosecution Academy of Ukraine 1:56-61.
European Court of Human Rights. 2017a. Case of Burmych and Others v. Ukraine. Retrieved July 20, 2020 (https://rm.coe.int/ attachment-1-judgment-burmych-gc-46852-13-ukr-translation-/168078eb76)
European Court of Human Rights. 2017b. Сase of Gubasheva and Ferzauli v. Russia. Retrieved September 15, 2020 (https://hudoc.echr.coe.int/eng#%7B%22tabview%22:%5B%22document%22%5D,%22itemid%22:%5B%22001-179502%22%5D%7D)
European Court of Human Rights. 2019. Сase of Luzi v. Italy. Retrieved September 15, 2020 (https://hudoc.echr.coe.int/ eng-press#%7B%22fulltext%22:%5B%22Luzi%20v.% 20Italy%22%5D%7D)
European Court of Human Rights. 2020. Сase of Vlastaris v. Greece. Retrieved September 15, 2020 (https://hudoc.echr.coe.int/ eng#%7B%22tabview%22:%5B%22document%22%5D,%22itemid%22:%5B%22001-201602%22%5D%7D)
Fikfak, V. 2018. "Changing State Behaviour: Damages Before the European Court of Human Rights." European Journal of International Law 29(4):1091-1125. https://doi.org/10.1093/ejil/chy064 DOI: https://doi.org/10.1093/ejil/chy064
Giannopoulos, C. 2019. "The Reception by Domestic Courts of the Res Interpretata Effect of Jurisprudence of the European Court of Human Rights." Rights Law Review 19(3):537-559. https://doi.org/10.1093/hrlr/ngz021 DOI: https://doi.org/10.1093/hrlr/ngz021
Hammarberg, T. 2009. Flawed Enforcement of Court Decisions Undermines the Trust in State Justice Commissioner for Human Rights. Strasbourg: Council of Europe. Retrieved July 20, 2020 (https://www.coe.int/en/web/commissioner/-/flawed-enforcement-of-court-decisions-undermines-the-trust-in-state-justice)
Hawkins, D. 2019. "Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints by Andreas von Staden." Human Rights Quarterly 41(1):231-233. https://doi.org/10.1353/hrq.2019.0017 DOI: https://doi.org/10.1353/hrq.2019.0017
Hillebrecht, C. 2014. "The Power of Human Rights Tribunals: Compliance with the European Court of Human Rights and Domestic Policy Change Courtney." European Journal of International Relations 20(4):1100-1123. https://doi.org/10.1177/1354066113508591 DOI: https://doi.org/10.1177/1354066113508591
Holovko, M. & Shevchenko, Y. 2018. "To the Issue of Criminal Responsibility for Violations of the European Court of Human Rights Decisions in Ukraine." Social and Legal Sciences 1(2):70-76.
Horbachova, I. M. 2017. "Some Aspects of Qualification of Failure to Observe а Judgement." Juridical Scientific and Electronic Journal 2:104-107.
Kamber, K. 2020. "Substantive and Procedural Criminal Law Protection of Human Rights in the Law of the European Convention on Human Rights." Human Rights Law Review 20(1):75-100. https://doi.org/10.1093/hrlr/ngaa005 DOI: https://doi.org/10.1093/hrlr/ngaa005
Legislation of Ukraine. 1997. Case of Hornsby v. Greece. Retrieved July 20, 2020 (https://zakon.rada.gov.ua/laws/show/980_ 079)
Legislation of Ukraine. 2009. Case "Yuriy Mykolayovych Ivanov v. Ukraine" (Application no. 40450/04). Retrieved July 20, 2020 (https://zakon.rada.gov.ua/laws/show/974_479)
Legislation of Ukraine. 2013. Case of Khvorostyana and Others v. Ukraine (Application № 54552/09 and 249 other applications). Retrieved July 20, 2020 (https://zakon.rada. gov.ua/laws/show/974_948)
Legislation of Ukraine. 2013. Case of Tsybulko & Others v. Ukraine (Application № 65656/11 and 249 other applications). Retrieved July 20, 2020 (https://zakon.rada.gov.ua/rada/ card/974_944)
Legislation of Ukraine. 2015. On the Strategy for Reforming the Judiciary, Judiciary and Related Legal Institutions for 2015-2020. Retrieved July 20, 2020 (https://zakon.rada.gov.ua/ laws/show/276/2015#Text)
Mattos, К. D. & Vieira, J. R. 2019. "Measuring Judicial Compliance in the 21st Century: Critical Thoughts on Contemporary Literature and Courts Initiatives." Proceedings of the ICON-S Conference 2019: Public Law in Times of Change? Pontificia Universidad Católica de ChileSantiago, pp. 1-15.
Nalutsyshyn, V. V. 2019. "Criminal Liability for Non-Compliance with a Court Decision Under the Laws of Ukraine and the European Union." PhD dissertation, Lviv State University of Internal Affairs, Lviv.
Pérez-Liñán, А., Schenonni, L. & Morrison, К. 2019. "Time and Compliance with International Rulings: The Case of the Inter-American Court of Human Rights." Max Planck Institute for Comparative Public Law and International Law, Research Paper Series 17. Retrieved July 20, 2020 (https://www. academia.edu/40545232/with_An%C3%ADbal_P%C3%A9rez-Li%C3%B1%C3%A1n_and_Kelly_Morrison_Time_ and_Compliance_with_International_Rulings_The_Case_of_the_Inter-American_Court_of_Human_Rights_Max_Planck_ Institute_for_Comparative_Public_Law_and_International_Law_Research_Paper_Series_17_2019)
Rivne Media. 2019. In Rivne region were detained 7 people evading criminal punishment. Retrieved July 20, 2020 (https://rivne. media/news/na-rivneshchini-zatrimali-7-osib-shcho-unikali-kriminalnoho-pokarannya)
Stiansen, Ø. 2019. "Delayed but not Derailed: Legislative Compliance with European Court of Human Rights Judgments." The International Journal of Human Rights 23(8):1221-1247. https://doi.org/10.1080/13642987.2019.1593153 DOI: https://doi.org/10.1080/13642987.2019.1593153
Voeten, E. 2014. "Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter: A Reply to Dia Anagnostou and Alina Mungiu-Pippidi." Journal of International Law 25(1):229-238. https://doi.org/10.1093/ejil/chu004 DOI: https://doi.org/10.1093/ejil/chu004
Yusubov, K. 2019. "Social Conditionality of Protection of the Order of Execution of Court Decisions." Law Review of Kyiv University of Law 4:359-364. https://doi.org/10.36695/2219-5521.4.2019.64 DOI: https://doi.org/10.36695/2219-5521.4.2019.64
Zakon Online. 2019. The decision of the Melitopol City District Court of the Zaporozhye region of March 28, 2019 in the case No. 320/824/19. Retrieved July 20, 2020 (https://zakononline. com.ua/court-decisions/show/80938585).
Zhao, J. 2020. "Enforcement of Property Punishment in Criminal Cases of China." Chinese Studies 9:29-41. https://doi.org/10.4236/chnstd.2020.91003 DOI: https://doi.org/10.4236/chnstd.2020.91003
Downloads
Published
How to Cite
Issue
Section
License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Policy for Journals/Articles with Open Access
Authors who publish with this journal agree to the following terms:
- Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.
- Authors are permitted and encouraged to post links to their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work
Policy for Journals / Manuscript with Paid Access
Authors who publish with this journal agree to the following terms:
- Publisher retain copyright .
- Authors are permitted and encouraged to post links to their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work .
