PRIVATIZATION MORATORIUM ON THE EXECUTION OF COURT DECISIONS IN THE CONTEXT OF THE RIGHT TO A FAIR TRIAL

Abstract

The right to judicial protection is a constitutional guarantee of human rights and freedoms and of economic entities. Court decisions are binding on the entire territory of Ukraine. Enforcement of court decisions is a component of the right to a fair trial. Failure to enforce a court decision that has entered into legal force in any legal system is nonsense that leads to the collapse of the economic system, civil and economic turnover involving a significant number of individuals and economic entities. In practice, the Ukrainian authorities give different priorities to the enforcement of ECHR decisions and decisions of national courts. According to experts, this phenomenon has provoked two types of enforcement proceedings in the Ukrainian legal system: the general procedure for the enforcement of decisions of national courts and the procedure aimed at the enforcement of ECHR decisions. Howe ver, individual measures in a separate case do not solve the systemic problem of non-enforcement of court decisions, which the ECHR focused on in pilot decisions in the cases of “Yuriy Mykolayovych Ivanov vs. Ukraine” (App lication No. 40450/04) and “Burmych and Others v. Ukraine” (Application No. 46852/13 and others).
Moratoria on the execution of court decisions result in the ECHR finding that Ukraine has violated its positive obligation to organize a system for the execution of court decisions without unjustified delays as an element of the right to a fair trial (Article 6, paragraph 1 of the Convention) and violated a number of articles of the Constitution of Ukraine. Moratoriums contradict both the economic interests of the enterprises themselves and their counterparties, as well as the economic in terests of the state, and the distortion of competition is a hidden form of state aid to individual entities, creating corruption risks.
This article is devoted to the main shortcomings of the legal norm that provides for the so-called privatization moratorium, which led to the submission of a constitutional complaint to the Constitutional Court of Ukraine with the question
of its unconstitutionality. The authors of the article include such shortcomings as: complete impossibility of a court decision executing, including the expense of the debtor’s funds and working capital, property held by third parties; absence
of a legally defined period for suspending enforcement actions, that leads to non-complian ce with the “temporary” criterion; disproportionate interference with property rights and absence of compensation for a long delay in the execution
of court decisions; discriminatory nature; violation of the principle of ensu ring equal protection of all forms of ownership; complicated procedure for judicial control over the execution of court decisions; risk of the state responsibility
for non-execution of court decisions. The indicated shortcomings are illustrated by the example of suspending enforcement actions in enforcement proceedings against PJSC “Centr energo”, the state-owned shareholding of which (78.289 %) has been included in privatization plans since 2013.
The article analyzes the main decisions of the Constitutional Court of Ukraine and the European Court of Human Rights, devoted to the right of a fair trial, which is a component of the national mechanism that ensures the full execution of court decisions without unjustified delays. The authors of the article substantiate the violation of the constitutional rights of debt collectors in enforcement proceedings, the enforcement actions in which were suspended on the basis of paragraph 12 of part 1 of article 34 of the Law of Ukraine “On Enforcement Proceedings,” and conclude that the specified norm of the law does not comply with the provisions of the Constitution of Ukraine.