Evgen Kubko. The enforcement of judgments of the ECHR: recourse actions, analogy with statutes, and analogy in law
The article discusses relevant issues arising in connection with the use of recourse lawsuits based on the enforcement of judgments made by the European Court of Human Rights. Whenever compensation is paid to an applicant, the state can file an action for damages against persons whose guilty actions served as a basis for the ECHR judgment to recover losses suffered by the state budget. The article analyses the law governing recourse actions in this field and focuses on the fact that courts have to take into account the specific nature of judgments made by the European Court of Human Rights when adjudicating relevant disputes. Such judgments cannot be reviewed, reversed, or disregarded by national courts. Recourse claims based on ECHR judgments are very different from recourse actions filed under civil, commercial, administrative or other branches of law. These claims are of an inter-branch nature and are closely related with international legal acts, such as the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, and judgments made by the European Court of Human Rights. As a result, recourse claims involve the use of both an analogy in law, which, as a rule, has a branch character, and analogy with statutes, relying on international legal principles and norms.
Currently, the legal situation develops in such a way that the persons whose acts served as a ground for a judgment of the ECHR do not bear any responsibility, since compensation is paid at the expense of the state budget. Officials of state and judicial bodies do not bear personal responsibility for unlawful decisions, and legal entities and individuals who triggered unlawful actions of officials are not held liable for damages. At the same time, they are in fact complicit in the unlawful actions of officials. The article deals with the issues of regulation of the existing situation based on the principles of the rule of law.
Key words: recourse actions, enforcement of court judgments, analogy with statutes, analogy in law.