Introduction
A final court judgment should ordinarily bring a dispute to an end. Yet in many jurisdictions, obtaining the judgment is only the first step. Where the State or an entity for whose obligations the State bears responsibility fails to ensure enforcement, what begins as an enforcement problem may evolve into a violation of the European Convention on Human Rights (“Convention”).
This article examines when the State’s failure to enforce a final domestic judgment moves beyond an ordinary enforcement problem and becomes a violation of the European Convention on Human Rights. It focuses principally on Article 1 of Protocol No. 1, while also explaining the complementary role of Article 6 § 1. It addresses a question increasingly relevant to businesses, investors, and individuals operating in jurisdictions where State enforcement systems are under strain.
The Legal Framework: Article 1 of Protocol No. 1 and the Complementary Role of Article 6
Article 1 of Protocol No. 1 protects the peaceful enjoyment of “possessions.” The European Court of Human Rights (ECtHR) has consistently held that this concept extends beyond physical property to include legally recognised claims – including a debt established by a final court judgment. Where a final judgment awards an applicant a specific sum or other entitlement, that judgment debt itself constitutes a “possession” for Convention purposes. Not every claim amounts to a “possession”; rather, the claim must be sufficiently established in domestic law, such as by a final and enforceable judicial decision.
Article 6 § 1 and Article 1 of Protocol No. 1 frequently operate together in non-enforcement cases. While Article 6 protects the right to effective judicial protection, Article 1 of Protocol No. 1 protects the economic value of the judgment itself. As the ECtHR has repeatedly held since Hornsby v. Greece (1997), the right to a court would be illusory if a final judicial decision could remain unenforced to the detriment of one party.
The concept of “legitimate expectation” is central to this analysis. As the ECtHR confirmed in Driza v. Albania (2007), building upon earlier principles developed in Stran Greek Refineries and Stratis Andreadis v. Greece (1994) and Pressos Compania Naviera S.A. and Others v. Belgium (1995), where a claimant holds a final judgment in his or her favour, that judgment gives rise to a legitimate expectation that the claim will be satisfied and failure to enforce it may constitute an interference with the right to property.
The State’s obligation is not merely to refrain from interfering with property rights; it includes a positive obligation to maintain an effective enforcement system. Prolonged non-enforcement of a final judgment is treated as an interference with the right guaranteed by Article 1 of Protocol No. 1, and will only be compatible with the Convention if it pursues a legitimate aim and maintains a fair balance between the demands of the general interest and the protection of the individual’s fundamental rights.
Private Debtor Default vs. State Responsibility
Not every failure to enforce a court judgment engages the State’s responsibility under the Convention. The critical distinction is between cases where enforcement fails due to a private debtor’s inability to pay and cases where the State itself directly or through entities it controls is the obstacle.
Private Debtor Insolvency: Generally Not Attributable to the State
The ECtHR has consistently held that a State cannot be held responsible for a private debtor’s inability to pay. In Omasta v. Slovakia (2002) and Vrtar v. Croatia (2016), the Court confirmed that the failure to enforce a judgment against an indigent or insolvent private debtor does not, without more, engage State responsibility under Article 1 of Protocol No. 1. The State’s obligation is to provide an adequate enforcement framework – the Convention does not make the State a guarantor of the solvency of private debtors.
However, even in private-debtor cases, the State’s responsibility may be engaged if the domestic authorities themselves cause or contribute to the delay, for example, by failing to proceed with enforcement measures within a reasonable time, by mishandling attachment orders, or by administrative errors that allow the debtor to dissipate assets.
When the State Is the Obstacle: Engaging Convention Responsibility
State responsibility is engaged where the non-enforcement results from:
- The State or a public authority is the judgment debtor. Where the judgment creditor’s claim is against a government ministry, municipality, or other public body, the State cannot invoke lack of funds or budgetary constraints as justification for non-payment.
- A State-owned or socially-owned enterprise is the debtor. The ECtHR may, where justified by the circumstances, look beyond the entity’s separate legal personality and attribute its conduct or liabilities to the State, particularly where the State has failed to maintain an arm’s-length relationship with the entity or has abused the corporate form.
- Legislative moratoria or budgetary immunity provisions prevent enforcement. Where the State enacts legislation that suspends or indefinitely delays enforcement of court decisions – whether styled as a moratorium, a stay, or a budgetary protection measure – this constitutes a direct State act that engages responsibility under Article 1 of Protocol No. 1.
Leading Case Law
Structural Non-Enforcement
Burdov v. Russia (No. 2) (2009) is the leading structural case on non-enforcement. Having already found a violation in the original Burdov case (concerning the State’s failure to pay social benefits awarded by domestic courts), the ECtHR in Burdov (No. 2) highlighted that, by 2009, the Court had already found violations arising from Russia’s recurring failure to enforce domestic judgments in more than 200 judgments since its first such finding in Burdov v. Russia in 2002. The ECtHR required Russia to establish, within six months, an effective domestic remedy capable of securing adequate redress for non-enforcement or delayed enforcement of domestic judgments. The Court assessed non-pecuniary damage by reference to the applicant’s age, personal income, and the nature of the entitlement left unenforced. (Note: Russia was expelled from the Council of Europe on 16 March 2022 and ceased to be a party to the Convention on 16 September 2022. While Burdov remains important precedent and its principles continue to apply to all remaining member States, the Convention enforcement mechanism is no longer available against Russia itself for new claims.)
The pilot judgment in Yuriy Nikolayevich Ivanov v. Ukraine (2009) identified a systemic problem of non-enforcement in Ukraine. By 2009, the Court had delivered judgments in more than 300 cases against Ukraine concerning repetitive violations arising from the non-enforcement or lengthy enforcement of final domestic judgments and the absence of effective domestic remedies, following its first such judgments in 2004. The applicant, an army veteran, complained of prolonged non-enforcement of judgments ordering payment of retirement and pension arrears. The Court required Ukraine to introduce, within one year, effective remedies capable of affording adequate and sufficient redress for non-enforcement of domestic judgments. When Ukraine failed to adopt the required measures, the Court resumed examination of similar applications in February 2012.
Burmych and Others v. Ukraine (Grand Chamber, 2017) concerned the same systemic problem identified in Ivanov – prolonged non-enforcement of final judicial decisions combined with the absence of effective domestic remedies. In an unprecedented and controversial procedural move, the Grand Chamber joined the five lead applications with 12,143 other pending similar applications and struck them out of its list, leaving supervision of the underlying structural problem to the Committee of Ministers rather than continuing to adjudicate them individually. The case was placed under enhanced supervision given the structural nature of the problem. This decision effectively acknowledged that the scale of the systemic dysfunction exceeded the Court’s individual-justice model.
Pilot Judgments on Restitution and Compensation: Romania and Albania
Non-enforcement of final decisions has generated pilot judgments beyond the post-Soviet context. In Maria Atanasiu and Others v. Romania (2010), the ECtHR found that non-enforcement of final decisions – combined with other shortcomings in the national restitution system – violated Article 1 of Protocol No. 1, and triggered the pilot judgment procedure. Similarly, in Manushaqe Puto and Others v. Albania (2012), the ECtHR found a violation on account of non-enforcement of a final decision awarding compensation in lieu of property restitution. A later decision, Beshiri and Others v. Albania (2020), reviewed Albania’s new domestic remedy introduced in response, assessing its appropriateness, adequacy of compensation, and accessibility – and found it effective, noting the State’s wide margin of appreciation in choosing forms of redress for property-rights breaches.
State-Owned Enterprises
Veličković and Others v. Serbia (2023) concerned complaints regarding the non-enforcement or delayed enforcement of domestic judgments given against socially-owned and State-owned companies. In the Grand Chamber judgment in Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia (now North Macedonia) (2014), the ECtHR developed these principles further: it found a breach of Article 1 of Protocol No. 1 because the respondent States declined responsibility for liabilities of State-owned banks by relying upon their separate legal personality. In Lekić v. Slovenia (Grand Chamber, 2018), the ECtHR elaborated the relevant factors for looking beyond the corporate form, including whether the State siphoned corporate funds to the detriment of the company and its stakeholders, or otherwise failed to maintain an arm’s-length relationship with the company or abused the corporate form.
Attributing Responsibility for State-Owned Entities
The practice of looking behind the corporate form to hold the State responsible for the debts of State-owned or State-controlled entities continues to develop. The Grand Chamber’s approach in Ališić and Lekić has established a framework under which the relevant inquiry is whether the State exercises sufficient control over the entity – without maintaining genuine corporate independence – such that the entity’s inability to satisfy judgment debts should be attributed to the State. This is of particular importance for investors and creditors who hold judgments against State-owned enterprises in Central and Eastern Europe, the Western Balkans, and other jurisdictions where public-sector entities regularly participate in commercial activity but invoke sovereign or corporate immunity when judgments fall due.
Recent Developments
The issue of non-enforcement remains a live and current problem. In Erol Aksoy v. Türkiye (2026), the ECtHR examined the non-enforcement of Supreme Administrative Court judgments annulling decisions related to the valuation, tender invitation, and subsequent sale of a television channel and radio station owned by joint-stock companies in which the applicant held shares. The Court found a violation of Article 6 § 1 in relation to the non-enforcement. This recent judgment illustrates that the principle applies equally to corporate and shareholder property interests – not only to individual social-benefit claimants and demonstrates that non-enforcement claims continue to be actively litigated before the Court.
Ukraine’s Wartime Moratorium on Enforcement
Since February 2022, martial law has been in force in Ukraine following Russia’s full-scale invasion. Martial law imposes significant procedural limitations on the enforcement of court decisions, particularly those involving State-owned enterprises and energy-sector entities. Banks are also constrained by restrictions on debt recovery from military personnel and enforcement of certain mortgages during martial law. Reportedly, the number of new enforcement cases fell by more than half in 2022 (from 4.1 million to 1.7 million), and in June 2022 the Ukrainian Parliament adopted legislation prohibiting enforcement cases from being opened in temporarily occupied territories and in the war zone.
Ukraine’s Constitutional Court (Grand Chamber) has been asked to examine a legislative provision establishing what has been characterised as an “absolute moratorium” on the enforcement of certain non-pecuniary court decisions during martial law. This illustrates the difficult balance under Article 1 of Protocol No. 1: while wartime measures restricting enforcement may be legitimate and proportionate in the short term, the proportionality of such measures will inevitably depend upon their scope, duration, and practical effect. Measures justified during an armed conflict may become incompatible with the Convention if maintained after the underlying justification has ceased or if they impose an excessive burden on judgment creditors.
It is important to note that Ukraine had adopted a strategy (September 2020) and an action plan (March 2021) to address the systemic problem of non-enforcement of domestic court decisions before the full-scale invasion. This included additional enforcement mechanisms for State-owned enterprises otherwise protected by moratoria, bankruptcy-law improvements, judicial control over enforcement, and a register of court decisions rendered against State entities. Most of these measures reportedly still needed to be carried out as of the most recent reporting. The wartime situation has therefore compounded a pre-existing structural problem rather than creating an entirely new one.
Practical Indicators: When Does Non-Enforcement Cross into Convention Territory?
Once the threshold question of State responsibility is established (as discussed above), the following factors may indicate that the matter has crossed into Convention territory:
- The State has abused the corporate form. The State has siphoned funds from, or otherwise manipulated the corporate structure of, the debtor entity to the detriment of creditors – a factor the Grand Chamber has identified as relevant to piercing the veil.
- There is a pattern of repetitive judgments. There are repetitive (“clone” or “table”) judgments or a large volume of similar pending applications against the same State, suggesting a structural rather than isolated problem – potentially warranting pilot-judgment treatment.
- Enforcement is repeatedly postponed by legislative intervention. Enforcement is delayed through successive legislative amendments rather than through the ordinary enforcement process – indicating a deliberate State policy of non-compliance rather than administrative failure.
- The delay is prolonged or indefinite. The non-enforcement has continued for an extended period without any clear timeline for resolution – the longer the delay, the stronger the inference of a Convention breach.
- No effective domestic remedy exists. There is no effective domestic remedy (compensatory or otherwise) available for the delay in enforcement itself – a factor that may simultaneously engage Article 13 of the Convention (right to an effective remedy).
The presence of several of these indicators may strongly suggest that the matter has moved beyond an ordinary enforcement dispute and into Convention territory.
Practical Takeaway
Non-enforcement of a final court judgment is not merely a commercial inconvenience where the State is directly or indirectly responsible for the failure to pay, it can constitute a violation of Convention rights. The key for practitioners is to identify early whether the State bears responsibility for the enforcement failure (as opposed to the debtor’s private insolvency) and to document the systemic or legislative obstacles preventing execution. Claims of this nature are well-established in ECtHR jurisprudence, continue to be actively adjudicated (as Erol Aksoy v. Türkiye (2026) illustrates), and remain an important tool for creditors, investors, and individuals facing State-created barriers to the satisfaction of their rights.
Early specialist advice is essential. The four-month deadline for filing an application with the ECtHR runs from the final domestic decision, subject to the admissibility rules applicable in the particular case, and admissibility requirements (including exhaustion of domestic remedies) must be carefully navigated. Engaging experienced ECtHR counsel at the earliest possible stage ideally while domestic enforcement proceedings are still ongoing significantly improves prospects of a successful application.
This article is part of a series. For related topics, see our articles How to Bring a Case to the European Court of Human Rights; Court Proceedings Taking Years: When Delay Becomes a Human Rights Violation; and What Happens After a Successful ECtHR Judgment? Execution, Reopening and Domestic Follow-Up.
How Fortior Law Can Help
Fortior Law has extensive experience with the European Court of Human Rights system. Our partner Ivan Lishchyna served as the Ukrainian Government Agent before the ECtHR between 2016 and 2021 – responsible for representing Ukraine in all proceedings before the Court – and previously worked at the Registry of the ECtHR in Strasbourg between 2002 and 2008. This experience provides valuable insight into the Court’s procedures from the perspectives of the Registry, the respondent State, and applicants.
We have particular expertise in non-enforcement claims, including cases involving State-owned enterprises, moratorium legislation, and structural enforcement failures. We advise clients throughout the life cycle of non-enforcement disputes – from assessing Convention compatibility and exhausting domestic remedies to preparing ECtHR applications and coordinating cross-border enforcement strategies.
With offices in Geneva, Zurich, Kyiv, London, New York, Nicosia, Taipei, and Tbilisi, Fortior Law is well positioned to assist clients across multiple jurisdictions with their ECtHR matters as part of a broader cross-border dispute resolution and investment protection strategy.
To discuss how we can assist you, please contact us at info@fortiorlaw.com.
This article is provided for general informational purposes only and does not constitute legal advice. For advice specific to your circumstances, please contact Fortior Law directly.
