FIFTH SECTION
DECISION
Application no. 38799/05
by Ivan Grygorovych BATRAK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 21 September 2010 as a Committee composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 15 October 2005,
Having regard to the unilateral declaration submitted by the respondent Government on 14 June 2010 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ivan Grygorovych Batrak, a Ukrainian national who was born in 1951 and lives in Sadky.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's neighbour, Mr G. used a small plot of land bordering on the land owned by the applicant.
On 22 January 2002 the applicant instituted civil proceedings against Mr G. in the Mezhivsk Court asking the court to establish a borderline with the property of his neighbour.
On 29 January 2002 Mr G. lodged a counterclaim against the Novopavlivska Village Council and the applicant alleging that he was entitled to the disputed plot of land.
Between 2002 and July 2010 the case was considered on merits by the domestic courts at three levels of jurisdiction. After the remittal of the case by a superior court, the proceedings are still pending before the Mezhivsk Court.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about unfairness and excessive length of the proceedings. He further invoked in that respect Articles 1, 8, 10, 17 o the Convention and Article 1 of Protocol No. 1.
THE LAW
A. Length of the proceedings
The applicant complained about excessive length of the proceedings. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By a letter dated 14 June 2010, the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by this complaint. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of Ukraine acknowledge the excessive duration of the civil procedure in the applicant's case.
I, Valeriya Volodimyrovna Lutkovska, the Deputy Minister of Justice of Ukraine, declare that the Government of Ukraine are ready to pay Mr Ivan Grygorovych Batrak ex gratia the sum of 2,000 (two thousand) euros.
The Government of Ukraine therefore invite the Court to strike the application no. 38799/05 out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
This sum of 2,000 (two thousand) euros, which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay [this sum] within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case”.
In a letter of 16 July 2010 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under paragraph 1 (a)-(c) of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will carefully examine the declaration in the light of the principles emerging from its case-law (see, in particular, Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
The Court has established in a number of cases, including those against Ukraine (see, among many other authorities, Pavlyulynets v. Ukraine, no. 70767/01, §§ 52-53, 6 September 2005; Moroz and Others v. Ukraine, no. 36545/02, §§ 61-62, 21 December 2006; and Golovko v. Ukraine, no. 39161/02, §§ 64-65, 1 February 2007), its practice concerning complaints about violations of the right to a hearing within a reasonable time.
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application.
The Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly, this part of the application should be struck out of the list.
B. Remainder of the application
Having carefully examined the remainder of the applicants' complaints, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
Therefore, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's unilateral declaration in respect of the applicant's complaint under Article 6 § 1 of the Convention about excessive length of the proceedings in the applicant's case and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Stephen PhillipsRait Maruste
Deputy RegistrarPresident
Full & Egal Universal Law Academy