FIFTH SECTION
DECISION
Application no. 11101/05
by Valentina Ivanovna BEREZENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 14 December 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 16 March 2005,
Having regard to the Court’s decision of 30 November 2010 in the case and the Government’s request to restore the case to the list in order to effect a number of technical amendments,
Having deliberated, decides as follows:
THE FACTS
The application was lodged by Ms Valentina Ivanovna Berezenko, a Ukrainian national who was born in 1938 and lives in Donetsk (“the applicant”). The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In June 1992 the applicant lodged a civil claim with the domestic courts against her former employer for reinstatement and recovery of salary arrears.
Following four remittals of the case for fresh examination, on 5 November 2003 the Kalininskyy Court allowed the applicant's claims in part. On 9 March and 23 November 2004 the Donetsk Regional Court of Appeal and the Supreme Court, respectively, upheld the judgment of 5 November 2003.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention of excessive length of the proceedings.
Under the same provision she complained about the outcome of the proceedings.
THE LAW
A. Length of the proceedings
The applicant complained that the proceedings in her case lasted excessively long. She 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 letter dated 29 July 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. 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, Yuriy Yevgenovych Zaytsev, the Agent of the Government of Ukraine, declare that the Government of Ukraine are ready to pay Ms Valentina Ivanovna Berezenko ex gratia the sum of 1,600 euros.
The Government of Ukraine therefore invite the Court to strike the application no. 11101/05 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 1,600 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.”
The applicant made no comments on the Government's declaration.
On 13 December 2010 the Government sent a letter expressing their intent to amend the above declaration and to include the provision that the ex gratia sums “be converted into the national currency of the respondent State at the rate applicable at the date of settlement” in order to be able to effect the payment.
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 (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular 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 examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (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.
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the matter, 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 complaints
The applicant also complained under Article 6 § 1 of the Convention about the outcome of the proceedings. The Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court
Decides to restore the case to its list of cases;
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 of excessive length of the proceedings in the applicant's case, as amended, 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