CASE OF RYASKA v. UKRAINE

FIFTH SECTION

CASE OF RYASKA v. UKRAINE

(Application no. 3339/23)

JUDGMENT
 

STRASBOURG

10 October 2024

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ryaska v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

 Mattias Guyomar, President,
 Lado Chanturia,
 María Elósegui,
 Kateřina Šimáčková,
 Mykola Gnatovskyy,
 Stéphane Pisani,
 Úna Ní Raifeartaigh, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to:

the application (no. 3339/23) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Yuriy Yuriyovych Ryaska (“the applicant”), on 29 December 2022;

the decision to give notice to the Ukrainian Government (“the Government”) of the application;

the parties’ observations;

Having deliberated in private on 3 September 2024,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The application concerns the non-enforcement of a domestic court judgment in favour of the applicant which ordered a State entity to perform certain actions. The applicant complained under Articles 6 and 13 of the Convention.

THE FACTS

2.  The applicant was born in 1960 and lives in Beregove Zakarpattya Region. He was represented by Mr Y.Y. Menzak, a lawyer practising in Kvasove.

3.  The Government were represented, most recently, by their Agent Ms Marharyta Sokorenko.

4.  The facts of the case may be summarised as follows.

5.  According to the applicant, between 1984 and May 2005 he worked as a bulldozer operator at the Berehivskyi Interdistrict Department for Water Management (“the Water Management Department”), a State entity.

6.  On 26 July 2005 a central commission of medical experts from the clinic for occupational illnesses at the Institute of Occupational Medicine issued protocol no. 31/1636, diagnosing the applicant with level IV hearing loss, which was classified as an occupational illness. On 1 August 2005 that clinic sent a notification form called Form P-3 to the Uzhhorod Regional Clinical Hospital and on 2 March 2006 it sent the above document to the applicant’s employer, informing them about the applicant’s diagnosis and stating that noise had caused that occupational illness. In accordance with Rules no. 1112 on the investigation and keeping of records of accidents and occupational illness, approved by the Cabinet of Ministers of Ukraine on 24 August 2004, the Water Management Department had to launch an investigation into the applicant’s illness within ten days after receiving the notification about the occupational illness and issue a certificate called Form P-4 following the investigation.

7.  According to the applicant, on 19 August 2005 he wrote to the director of the Water Management Department, asking for a commission to be established to investigate why he had developed that illness. The investigation commission was not created.

8.  On 14 February 2006 the central commission of medical experts issued conclusion no. 7/306, confirming the applicant’s diagnosis of occupational illness.

9.  In March 2006 the director of the Water Management Department initiated administrative court proceedings against the clinic for occupational illnesses at the Institute of Occupational Medicine, seeking to annul the above-mentioned conclusion of 14 February 2006. On 17 May 2011 the Higher Administrative Court of Ukraine upheld a decision by an appellate court of 22 February 2007 rejecting the director’s claim as unsubstantiated.

10.  Following complaints by the applicant, on 28 April 2007 the local prosecutor’s office wrote to the director of the Water Management Department, ordering the department to carry out an investigation into why the applicant had developed that illness.

11.  On 15 June 2007 the director of the Water Management Department ordered that a commission should be created to investigate why the applicant had developed that illness. On 8 August 2007 the investigation commission convened a meeting, but did not proceed to examine the applicant’s case. In accordance with Rules no. 1112, the commission had to carry out an investigation, taking into consideration the health and hygiene specifications for the applicant’s position. However, there were no valid specifications, as the old version of those specifications, dated 29 March 2005, was no longer valid.

12.  In March 2008 the applicant initiated court proceedings, seeking to oblige officials from the Water Management Department to carry out an investigation into why his occupational illness had developed and issue him with a Form P-4 certificate, as well as compensation in respect of non‑pecuniary damage and costs and expenses.

13.  On 20 January 2009 the Berehivskyi District Court of Zakarpattia Region allowed the applicant’s claim, finding that the failure of the officials from the Water Management Department to carry out an investigation into why his occupational illness had developed and issue Form P-4 was unlawful. It ordered the Water Management Department to carry out such an investigation and issue the applicant with a Form P-4 certificate. That court allowed the applicant’s claim in respect of non-pecuniary damage caused by the failure of his employer to issue him with a Form P-4 certificate, awarding him 10,000 Ukrainian hryvnias (UAH – around 985 euros (EUR) at the relevant time) in damages and UAH 700.80 in respect of legal aid and costs and expenses.

14.  On 9 April 2009 the Zakarpattya Regional Court of Appeal upheld the decision of the first-instance court, but reduced the amount of compensation in respect of non-pecuniary damage to UAH 5,000 (around EUR 491 at the relevant time). On 12 October 2009 the Supreme Court upheld the decisions of the lower courts.

15.  On 29 September 2009 a bailiff wrote to the chief medical officer at the local public health and epidemiology service, asking him to draft the health and hygiene specifications for the applicant’s working conditions.

16.  On 11 July 2010 and 30 September 2010 the bailiff imposed a fine on the Water Management Department for failing to enforce the decision of 20 January 2009.

17.  On 10 January 2011 the bailiff closed the enforcement proceedings on the grounds that enforcement was impossible without the participation of the entity against whom the judgment had been ordered. On 21 October and 21 December 2009 the compensation and costs awarded – amounting to UAH 4,500 and UAH 1,200.80 respectively – were paid by the debtor to the applicant.

18.  On 30 December 2010 the bailiff asked the local prosecutor’s office to open criminal proceedings into the failure to enforce the court decision of 20 January 2009.

19.  On 21 January 2011, 19 August 2011, 24 January 2012 and 21 September 2012 a deputy prosecutor refused to open criminal proceedings. Those decisions were quashed by decisions of the Berehivskyi District Court of Zakarpattia Region of 28 July 2011, 10 January 2012, 11 September 2012 and 21 March 2013 respectively.

20.  On 18 April 2013 the police created an entry in the integrated register of pre-trial investigations in respect of the non-enforcement of the court decision dated 20 January 2009, and opened a criminal case under Article 382 § 1 of the Criminal Code. In 2013 an investigator questioned the director of the Water Management Department and other members of the investigation commission, who reiterated that it had been impossible to carry out an investigation into why the applicant’s illness had developed, as there had been no valid health and hygiene specifications for his working conditions.

21.  Between October 2013 and March 2020 the investigator closed the criminal proceedings seven times. Those decisions were quashed as premature and unlawful by the prosecutor’s office or by the Berehivskyi District Court of Zakarpattia. In the meantime, the prosecutor’s office gave instructions to the investigator on how to proceed with the case. Some actions were performed, notably the seizure of the Water Management Department’s journal of incoming correspondence between 2005 and 2006, and the questioning of the applicant and the director of the Water Management Department. In addition, in 2017 the police received confirmation from a State hospital, the Institute of Occupational Medicine, that the applicant had undergone medical treatment there in July 2005.

22.  On 14 March 2020 an investigator questioned the director of the Water Management Department again, who reiterated that it had been impossible to convene a meeting of the investigation commission, as they had not had Form P-3 (the notification form) at their disposal and no health and hygiene specifications for the applicant’s position had been drafted.

23.  On 23 August 2023 a prosecutor asked the relevant court to close the criminal case on the grounds that the statutory limitation period had expired and no perpetrator had been identified.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

24.  On 30 September 2020 the Cabinet of Ministers adopted a national strategy in order to tackle the issue of the non-enforcement of national courts’ decisions rendered against the State, its bodies or entities by 2022. The strategy reflects the main legal, financial and institutional root causes of the problem and provides strategic directions for further action. On 19 September 2023 the strategy was amended, setting 2025 as the new time-limit.

25.  On 17 March 2021 the Cabinet of Ministers adopted an action plan for the implementation of the national strategy, which set out a list of tasks and corresponding measures to be taken by 2022 regarding the execution of decisions relating to both pecuniary and non-pecuniary obligations. On 19 September 2023 the action plan was amended, setting 2025 as the new time-limit.

26.  On 23 June 2023 the Government provided the Committee of Ministers of the CoE with an updated action plan on measures to comply with the Court’s judgments in Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, 15 October 2009), Zhovner v. Ukraine (no. 56848/00, 29 June 2004) and Burmych and Others v. Ukraine ((striking out) [GC], nos. 46852/13 et al., 12 October 2017). They stated that the above group of cases related to the major structural problem of the non-enforcement or delayed enforcement of domestic judicial decisions concerning both pecuniary and non-pecuniary obligations in kind, mostly delivered against entities owned or controlled by the State. The Government provided updated information on the enforcement proceedings relating to national courts’ decisions, including the decision in Safonov and Safonova v. Ukraine (no. 24391/10, 18 June 2020).

27.  The relevant part of the interim resolution reads as follows:

“The Committee of Ministers ...

...

STRONGLY URGED the authorities to provide updated information relating to the payment of the just satisfaction and, where applicable, the enforcement of domestic judicial decisions, ordering compensation payments or action in kind ...”

28.  The relevant parts of the memorandum read as follows:

“IV. Appendix 1: Executive summary and list of recommendations

...

II. RECOMMENDATIONS:

A.INDIVIDUAL CASES

1. The authorities should provide information on the payment of the just satisfaction and/or the final enforcement of the outstanding domestic judicial decisions without further delay, including in-kind obligations.

...

3. As regards the applicants identified as having valid claims, in accordance with the Burmych and Others judgment, the authorities could be encouraged to speed up the payment process, to ensure the applicants’ rights guaranteed under the Convention. They would need to align the payment process with the requirements previously indicated by the Committee, which should include payment of interest and damages for delayed enforcement and with a view to safeguarding the value of the monetary award.”

29.  The relevant parts of the decisions read as follows:

“The Deputies

...

2. recalled that this group of cases, the first judgment of which became final in 2004, concern non-enforcement or delayed enforcement of domestic court judgments against the State or state-controlled entities requiring the payment of pecuniary sums and/or the provision of non-pecuniary obligations-in-kind, and the lack of effective domestic remedies in this respect;

...

As regards individual measures

...

8. urged again the authorities to submit without delay detailed information regarding the execution of the remaining judgments in this group, including on the enforcement of the domestic decisions with in-kind obligations;

...”

30.  The relevant parts of the resolution read as follows:

“The Committee of Ministers ...

...

Considering that the question of individual measures was resolved ...;

Recalling that the question of general measures required in response to the shortcomings found by the Court in this judgment continues to be examined within the framework of the Yuriy Nikolayevich Ivanov / Zhovner and Burmych and Others group of cases also in the light of the Court’s findings in this case, and that the closure of this case therefore in no way prejudges the Committee’s evaluation of the general measures required to resolve the problem of non-enforcement or delayed enforcement of domestic judicial decisions and the lack of an effective domestic remedy in this respect;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case;

CONCLUDES that the necessary individual measures have been adopted;

DECIDES to continue to supervise the adoption of the necessary general measures concerning the problem of non-enforcement or delayed enforcement of domestic judicial decisions and the lack of an effective domestic remedy in this respect in the Yuriy Nikolayevich Ivanov / Zhovner and Burmych and Others group of cases;

...”

THE LAW

31.  The applicant complained that the decision in his favour had not been enforced, in violation of Article 6 of the Convention. He also complained of the lack of an effective remedy in domestic law, in breach of Article 13 of the Convention. In so far as relevant, those provisions read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

32.  The Court reiterates that effective access to a court, guaranteed by Article 6 of the Convention, includes the right to have a court decision enforced without undue delay (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 66, ECHR 1999-V). In the present case, the domestic courts’ decisions concerned the applicant’s civil rights within the meaning of Article 6, but remained unenforced. Article 6 is therefore applicable.

33.  The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

34.  The applicant maintained his complaint.

35.  The Government submitted that the present application fell within the category of Burmych-type follow-up applications, and asked the Court to deal with it in accordance with the procedure provided for in that judgment – by the present case being struck out of the list of cases and transmitted to the Committee of Ministers for their supervision in the framework of general measures.

36.  The Court reiterates that as a response to the growth in its caseload caused by a series of cases deriving from the same structural or systemic dysfunction, the Court conceived a pilot-judgment procedure (see Broniowski v. Poland [GC], no. 31443/96, §§ 190-191, ECHR 2004-V). The aim of the pilot-judgment procedure is to facilitate the most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order (see Varga and Others v. Hungary, nos. 14097/12 and 5 others, § 97, 10 March 2015). The situation complained of in a “pilot” case necessarily extends beyond the sole interests of the individual applicant and requires it to examine that case also from the perspective of general measures (see Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 36, ECHR 2005-IX).

37.  In the pilot case of Yuriy Nikolayevich Ivanov (cited above, §§ 89-90), the Court observed that the problems relating to non-enforcement in Ukraine were structural, large-scale and complex, and that they required the implementation of comprehensive and complex measures, possibly of a legislative and administrative character, involving various domestic authorities. The Court ordered the respondent State to introduce an effective domestic remedy or combination of such remedies capable of securing adequate and sufficient redress for the non‑enforcement or delayed enforcement of domestic decisions (ibid., the fifth operative provision of the judgment).

38.  In the case of Burmych and Others (cited above, § 215), the Court examined Ivanov-type follow-up applications and reiterated that the issue of the non-enforcement of domestic courts’ judgments comprised large-scale and complex structural problems, owing to the failure of the Ukrainian Government to implement the requisite general measures ordered in Ivanov. The Court adopted a new approach in Ivanov-type follow-up applications – it struck non-enforcement cases out of its list of cases and transmitted them to the Committee of Ministers of the Council of Europe for processing (ibid., the fourth operative provision of the judgment).

39.  The case of Safonov and Safonova v. Ukraine (no. 24391/10, § 51, 18 June 2020) concerned the non-enforcement of non-pecuniary obligations in kind. It is true that the Court, considering that the cases struck out in Burmych concerned solely pecuniary debts, decided not to proceed with striking out Safonov and Safonova, reasoning that it was not related to the above systemic problems and required a continued examination. Following Safonov and Safonova, the Court examined several similar cases separately from Burmych-type cases. For instance, in the case of Kochkina and Kochkin v. Ukraine ([Committee], nos. 46311/08 and 2973/10, § 48, 10 September 2020), the Court decided that the State had fallen short of its obligation to assist in the execution of a decision of 24 December 2002 rendered against a company, K., which obliged it to reconstruct an annex building adjacent to the flat belonging to the applicant in that case (ibid., §§ 10 and 47). However, while those cases were examined on the merits, without the Court resorting to striking them out and transmitting them to the Committee of Ministers of the Council of Europe as in Burmych and the relevant follow-up cases, it is noteworthy that the Court did not identify any issues in domestic law and practice that were specific to the non-enforcement of non-pecuniary civil obligations in kind and were different from those in Ivanov and Burmych. Therefore, while each individual case has its specific features, it cannot be said that the Court’s continued examination, since Safonov and Safonova, of Ukrainian non-enforcement cases under Article 6 of the Convention has provided further clarification regarding the complex measures that are to be implemented by the respondent State in order to deal with the systemic issues identified in Ivanov and Burmych.

40.  The present application concerns the non-enforcement of the decision of the Berehivskyi District Court of Zakarpattia Region of 20 January 2009 rendered against the Water Management Department, a State entity. That court decision required the defendant to pay compensation and comply with specific non-pecuniary obligations in kind, which were not complied with. The Government considered that the present case fell within the same category of cases examined in Burmych, and that the appropriate course of action for the Court would be to strike the case out of its list of cases and transmit it to the Committee of Ministers of the Council of Europe (see paragraph 35 above).

41.  The Court observes at the outset that in its judgment in Burmych, while the five cases assessed individually therein concerned monetary awards, it did not distinguish between the non-enforcement of pecuniary and non-pecuniary obligations, and notes that cases of the latter type were among those struck out of the list in Burmych. Significantly, the Court also notes that since the delivery of the Ivanov pilot judgment and the Burmych judgment, the Committee of Ministers of the Council of Europe and the Government of Ukraine have been working together in order to tackle the issue of the non‑enforcement or delayed enforcement of the national courts’ decisions, aiming to develop and supervise the adoption of general measures which would improve the situation in respect of the non-enforcement or delayed enforcement of all types of civil court decisions. In this process, the structural issues that had to be tackled, or at least some of them, were seen as relating to the non-enforcement of all types of court decisions, including those concerning non-pecuniary obligations in kind (see paragraphs 26 and 27 - 30 above). The Court also reiterates that under the system for the international protection of fundamental rights and freedoms established by the Convention, supervision of the execution of the Court’s judgments falls within the remit of the Committee of Ministers of the Council of Europe, which is thus well equipped to seek the adoption of such general measures that would address the substance of all structural issues that may be at the origin of a Contracting Party’s systemic failure to secure the enjoyment of a particular Convention right.

42.  Bearing in mind all of the above, as regards applications against Ukraine under Article 6 of the Convention concerning the non-enforcement of domestic civil judgments against the State or State-controlled bodies, the Court considers that continuing its practice of dividing such applications into two separate groups (those involving non-pecuniary obligations in kind and those involving pecuniary debts) and further examining each individual case falling within the former category would not serve any useful purpose. The Court’s task, as defined by Article 19, to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in a large series of cases (see Varga and Others, cited above, § 96).

43.  Furthermore, the Court has stated that another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at domestic level, thus implementing the principle of subsidiarity which underpins the Convention system (ibid.). The Contracting States’ recommitment to resolving the systemic and structural human rights problems identified by the Court and ensuring the full, effective and prompt execution of its final judgments, taking into account their binding nature, was expressed unequivocally during the recent Summit of Heads of State and Government held in Reykjavik in 2023 (see Appendix IV to the Reykjavík Declaration). The Court’s concern is to facilitate the effective correction of a defect identified in the national system of human-rights protection, and its judgments serve not only to decide those cases brought before it. It therefore follows that once such a defect has been identified, the national authorities have the task, subject to supervision by the Committee of Ministers, of taking – retrospectively if need be – the necessary measures of redress in accordance with the principle of subsidiarity, which underpins the Convention system, so that the Court does not have to reiterate its finding of a violation in a series of comparable cases (see, mutatis mutandis, Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 417, 26 September 2023, with further references).

44.  The Court has already decided the legal issues under Article 6 of the Convention relating to the non-enforcement of Ukrainian court decisions in the Ivanov pilot judgment and in Sylenok and Tekhnoservis-Plus v. Ukraine (no. 20988/02, 9 December 2010), Chuykina v. Ukraine (no. 28924/04, 13 January 2011), Rysovskyy v. Ukraine (no. 29979/04, 20 October 2011), Kontsevych v. Ukraine (no. 9089/04, 16 February 2012), Tonyuk v. Ukraine, (no. 6948/07, June 2017), and Safonov and Safonova (cited above). It is now for the State to develop general measures in order to eliminate the root causes of violations in the same type of cases. Cases involving the non-enforcement of national court decisions falling to be examined under Article 6 of the Convention should therefore be dealt with within the framework of execution proceedings (see Burmych, cited above, § 159, with the references cited therein). The above is without prejudice to the Court’s approach in cases raising issues of a different nature compared to those already examined or cases in which, being the master of the legal characterisation of the complaints, it considers that in the specific circumstances the non‑enforcement of a domestic judicial decision falls to be examined under another Convention provision (see, for example, Shvets v. Ukraine, ([Committee] no. 22208/17, 23 July 2019) and M.R. and D.R. v. Ukraine (no. 63551/13, 22 May 2018), raising issues under Article 8 of the Convention, as well as Zhokh v. Ukraine ([Committee], no. 29319/13, 28 September 2023), raising an issue under its Article 10).

45.  Accordingly, the Court finds that the present case should be dealt with in accordance with the procedure set out in paragraphs 219-223 of the Burmych judgment – it should be struck out of its list of cases under Article 37 § 1 (c) of the Convention and transmitted to the Committee of Ministers of the Council of Europe in order to be dealt with in the framework of the general measures of execution set out in the Ivanov pilot judgment.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 10 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Victor Soloveytchik Mattias Guyomar
 Registrar President