FIFTH SECTION
DECISION
Application no. 35113/03
by Rostyslav Ivanovych BOLTYONKOV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 19 June 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 October 2003,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Rostyslav Ivanovych Boltyonkov, is a Ukrainian national who was born in 1937 and currently resides in Israel. He was represented before the Court by Mr Grygoriy Kuryshchuk, a lawyer practising in Kolomyya. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1995 the applicant instituted proceedings against the Ivano-Frankivsk Regional Military Registration Department (Івано-Франківський обласний військовий комісаріат) and the Kolomyya Social Security Department (Коломийське міське управління соціального захисту населення) seeking to receive a certificate of military combatant (посвідчення учасника бойових дій), reassessment of his pension and compensation for non-pecuniary damage.
On 17 March 1998 the Kolomyya City Court found for the applicant and ordered the Ivano-Frankivsk Regional Military Registration Department (the “Military Department”) to pay him UAH 300[1] in compensation for non-pecuniary damage.
On 14 December 1998 the Kolomyya District Court ordered the Military Department to pay the applicant UAH 640[2] in compensation for court fees and expenses for legal assistance.
On 12 November 1999 the Kolomyya City Court ordered the Military Department to pay the applicant a total of UAH 212[3] in compensation for failure to enforce the judgments of 17 March and 14 December 1998.
On 30 November 1999 the Ivano-Frankivsk Bailiffs’ Office (the Bailiffs) instituted enforcement proceedings.
All judgments given in the applicant’s favour were not enforced due to the lack of funds in the respondent’s bank accounts.
On 19 November 2001 the Ivano-Frankivsk City Court rejected the applicant’s claim brought against the Military Department and the Bailiffs by which he sought compensation for pecuniary and non-pecuniary damage caused by their alleged failure to enforce the judgments given in his favour.
On 2 July 2002 and 5 May 2003 the Ivano-Frankivsk Regional Court of Appeal and the Supreme Court, respectively, upheld this decision.
During 1999-2005 the applicant and his representative lodged numerous petitions with the Bailiffs, the Ivano-Frankivsk Department of Justice and the Prosecutor General, seeking to facilitate the enforcement of the above-mentioned judgments.
On 20 February 2006 the applicant’s representative informed the Court that all the judgments given in the applicant’s favour remained unenforced.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the non-enforcement of judgments given in his favour.
THE LAW
On 3 November 2006 the Court received the following declaration, signed by the Government:
“I, Yuriy Zaytsev, Agent of the Government before the European Court of Human Rights, declare that the Government of Ukraine agree to acknowledge, unilaterally, a breach of Article 6 § 1 of the Convention resulting from the non-enforcement of the domestic courts’ judgments of 17 March 1998, 14 December 1998 and 12 November 1999 given by the Kolomyya City Court in favour of Mr Rostyslav Ivanovych Boltyonkov and to pay the judgments’ debts still owed to him as well as to pay him ex gratia EUR 900 (nine hundred euros) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum of EUR 900 (nine hundred 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 and 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. The payment will constitute the final resolution of the case.”
On 3 January 2007 the Court received the following declaration from the applicant’s representative:
“I, Kuryshchuk Grygoriy Vasylyovych, an advocate, note that the Government of Ukraine are prepared to acknowledge a breach of Article 6 § 1 of the Convention resulting from the non-enforcement of the domestic courts’ judgments of 17 March 1998, 14 December 1998 and 12 November 1999 given by the Kolomyya City Court in favour of Mr Rostyslav Ivanovych Boltyonkov and to pay the judgments debts still owed to him as well as to pay him ex gratia EUR 900 (nine hundred euros) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum of EUR 900 (nine hundred 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 and 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Ukraine in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia Westerdiek Peer Lorenzen
RegistrarPresident
[1]. Approximately EUR 64.75.
[2]. Approximately EUR 138.15.
[3]. EUR 40.52.
Full & Egal Universal Law Academy