Resolution CM/ResDH(2011)35[1]
Execution of the judgment of the European Court of Human Rights
Ponomarenko against Ukraine
(Application No. 13156/02, judgment of 14 June 2007, final on 14 September 2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns a denial of justice to the applicant due to the unjustified refusal by the domestic courts to consider his claim on the merits (violation of Article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Ukraine’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2011)35
Information on the measures taken to comply with the judgment in the case of
Ponomarenko against Ukraine
Introductory case summary
The case concerns a violation of the applicant’s right of access to a court in 2001 due to an unjustified refusal by the Gola Prystan Town Court and the Kherson Regional Court to consider the applicant’s claim against local authorities concerning access to his property on the merits.
The Court observed that neither the courts’ decisions on the lack of jurisdiction over the applicant’s claim nor the government’s submissions had contained references to the domestic law in force at the material time which would have excluded such claims from the courts’ jurisdiction. Moreover, the Court noted that, according to the interpretation by the Constitutional Court and the Supreme Court, given prior to the courts’ decisions in this case, the relevant domestic law and procedural rules should not been construed so as to limit citizens’ right of direct access to the courts in respect of their complaints about the alleged omissions or inactivity of public or local authorities. In the Court’s view, such situation amounted to a denial of justice which impaired the very essence of the applicant’s right of access to a court as secured by Article 6 § 1 of the Convention.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
The European Court stated that finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
b) Individual measures
Ukrainian law provides the possibility to request reopening of proceedings following a violation found by the European Court. By letter of 22 November 2007, the government informed the applicant of his right to seek reopening of the contested proceedings. The applicant made no request for reopening within the time-limit set by the Ukrainian legislation. Consequently, no other individual measure was considered necessary by the Committee of Ministers.
II.General measures
a) Legislative amendments
According to the Ukrainian authorities, the violation found by the European Court in this case was due to the fact that under the old Code of Civil Procedure the applicant should have first used non-judicial means to challenge the local authorities’ decision. Since he did not do so, the domestic courts were obliged to reject his application.
On 1 September 2005 the new Code of Civil Procedure entered into force. The need to exhaust non-judicial means before applying to a court was repealed.
b) Publication and dissemination of the judgment
The judgment was translated into Ukrainian and published in the official government bulletin, the Official Herald of Ukraine [Ofitsiinyi Visnyk Ukrainy], no. 76 of October 2007. The summary of the judgment was also published in the Government Currier [Uriadovyi Kurier], no. 190 of 16 October 2007.
The attention of judges of the Supreme Court of Ukraine, the Gola Prystan Town Court and the Court of Appeal of Kherson Region was drawn to the European Court’s conclusions in the present case.
III.Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Ukraine has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 10 March 2011 at the 1108th Meeting of the Ministers’ Deputies
Full & Egal Universal Law Academy