FIFTH SECTION
CASE OF SEMYANISTY AND OTHERS v. UKRAINE
(Application no. 7070/04)
JUDGMENT
STRASBOURG
9 January 2014
This judgment is final. It may be subject to editorial revision.
In the case of Semyanisty and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Boštjan M. Zupančič, President,
Ann Power-Forde,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 3 December 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 7070/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 53 Ukrainian nationals, (“the applicants”), on 3 January 2004. The personal details of the applicants are listed in the annexed table.
2. The applicants were represented by Mr V.N. Bychkovskiy.
3. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
4. On 2 March 2009 the application was communicated to the Government.
5. On 18 May 2009 the applicants’ representative informed the Court that the applicants listed in the annexed table under nos. 2, 5, 6, 10, 31, 33, 41 and 43 had died and that their next of kin (Ms Boltova, Ms Buchnyeva, Ms Gaydar, Mr Izosin, Ms Poterpeyeva, Ms Selivestrova, Mr Sysoyev and Ms Russu) expressed the wish to maintain the application on their behalf.
6. On 2 October 2012 the Government also informed the Court that the applicants Mr Grosberg, Ms Izosina, Mr Kochubey, Mr Lantsov, Ms Litvinova, Ms Shilepina, Mr Tarasov, Mr Tikhonov, Mr Tokarev, Ms Voronaya, Mr Yevdokimov, Ms Zmiyevskaya and Ms Zolotoverkhova (listed in the annexed table under nos. 9, 11, 15, 19, 23, 38, 42, 44, 46, 48, 50, 52 and 53) had died. The Government invited the Court to strike the application insofar as lodged by those applicants from its list of cases.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
7. In the period from 1998 to 2002 (the exact dates are listed in the appended table) the Krasnyy Luch Court delivered decisions according to which the State-owned coal mine “Almaznaya” was obliged to pay the applicants or their next of kin heating coal, to which they were entitled under the domestic law. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.
THE LAW
I. AS TO THE LOCUS STANDI OF Ms BOLTOVA, Ms BUCHNYEVA, Ms GAYDAR, Mr IZOSIN, Ms POTERPEYEVA, Ms SELIVESTROVA, Mr SYSOYEV AND Ms RUSSU
8. The Court notes that the present application concerns a property right which is in principle transferable to the heirs, and that there are next of kin of the applicants who wish to pursue the application. In these circumstances the Court considers that the next of kin of the applicants listed in the annexed table under nos. 2, 5, 6, 10, 31, 33, 41 and 43 have standing to continue the present proceedings in their stead (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006).
II. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION INSOFAR AS LODGED BY Mr GROSBERG, Ms IZOSINA, Mr KOCHUBEY, Mr LANTSOV, Ms LITVINOVA, Ms SHILEPINA, Mr TARASOV, Mr TIKHONOV, Mr TOKAREV, Ms VORONAYA, Mr YEVDOKIMOV, Ms ZMIYEVSKAYA AND Ms ZOLOTOVERKHOVA
9. The Court notes that by letters dated 16 July 2013, sent by registered post to the addresses of the applicants, who were reported by the Government as deceased (see § 6 above), “those to whom it might concern” were invited to inform the Court by 16 August 2013 whether they wish to maintain the application. Their attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that there are no person, who intend to pursue the application. The letters sent to the addresses of the applicants listed in the annexed table under nos. 23 and 44 were received on 30 July 2013, however no replies followed. The remainder of the letters returned to the Court unclaimed (non réclamé).
10. In view of the above the Court decides to strike out from its list of cases the application insofar as lodged by Mr Grosberg, Ms Izosina, Mr Kochubey, Mr Lantsov, Ms Litvinova, Ms Shilepina, Mr Tarasov, Mr Tikhonov, Mr Tokarev, Ms Voronaya, Mr Yevdokimov, Ms Zmiyevskaya and Ms Zolotoverkhova (applicants listed in the annexed table under nos. 9, 11, 15, 19, 23, 38, 42, 44, 46, 48, 50, 52 and 53), since the applicants died and there are no persons wishing to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, there are no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of their complaints.
III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
11. The applicants complained about the lengthy non-enforcement of the judgments given in their favour and about the lack of effective domestic remedies in respect of those complaints. They relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.
12. The Court notes that the complaints of the applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
13. The Court finds that the decisions in the applicants’ favour were not enforced in due time, for which the State authorities were responsible.
14. Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § §§ 56-58 and 66-70, 15 October 2009), the Court finds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the prolonged non-enforcement of the decisions in the applicants’ favour. It also considers that there has been a violation of Article 13 of the Convention in that the applicants did not have an effective domestic remedy to redress the damage created by such non-enforcement.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
16. In the present case, the Court considers it reasonable and equitable (see Kononova and Others v. Ukraine [Committee], no. 11770/03 and 89 other applications, § 24, 6 June 2013; Tsibulko and Others v. Ukraine [Committee], no. 65656/11 and 249 other applications, § 19, 20 June 2013; Pysarskyy and Others v. Ukraine [Committee], no. 20397/07 and 164 other applications, § 24, 20 June 2013) to award 2,000 euros (EUR) to each of the applicants listed in the annexed table or their next of kin (with the exception of the applicants struck out of the Court’s list of cases – see § 11 above). This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.
17. The Court further notes that the respondent State has an outstanding obligation to enforce the decisions which remain enforceable.
18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to strike the application insofar as lodged by Mr Grosberg, Ms Izosina, Mr Kochubey, Mr Lantsov, Ms Litvinova, Ms Shilepina, Mr Tarasov, Mr Tikhonov, Mr Tokarev, Ms Voronaya, Mr Yevdokimov, Ms Zmiyevskaya and Ms Zolotoverkhova (the applicants listed in the annexed table under nos. 9, 11, 15, 19, 23, 38, 42, 44, 46, 48, 50, 52 and 53) out of its list of cases;
2. Declares admissible the complaints of the remaining applicants under Article 6 § 1, Article 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints;
4. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1;
5. Holds that there has been a violation of Article 13 of the Convention;
6. Holds
(a) that within three months the respondent State is to enforce the domestic decisions in the favour of the applicants or their next of kin (with the exception of the applicants listed in the annexed table under nos. 9, 11, 15, 19, 23, 38, 42, 44, 46, 48, 50, 52 and 53) and is to pay EUR 2,000 (two thousand euros) to each applicant listed in the annexed table or his or her estate (with the exception of the applicants listed in the annexed table under nos. 9, 11, 15, 19, 23, 38, 42, 44, 46, 48, 50, 52 and 53) in respect of pecuniary and non-pecuniary damage, and costs and expenses, plus any tax that may be chargeable to the applicants on the above amounts, which are to be converted into the national currency at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 9 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
APPENDIX
No.
Applicant’s name
Year of birth (if known)
Date of the court decision
1
SEMYANISTY
GRIGORIY MIRONOVICH
unspecified
23 October 2001
2
BOLTOV
SERGEY VASILYEVICH
1930
14 January 2002
3
BORTNIKOVA
LYUBOV MITROFANOVNA
1964
30 March 2001
4
BORZENKO
MARIYA IGNATYEVNA
1930
28 November 2001
5
BUCHNYEV
ALEKSANDR YERMOLAYEVICH
1931
13 June 2002
6
DOLZHENKO
RAISA MIKHAYLOVNA
1944
5 June 2001
7
GLADKOVA
NADEZHDA NIKIFOROVNA
1936
14 January 2002
8
GORDIYAK
BORIS PROKOVYEVICH
1937
11 December 2001
9
GROSBERG
YULIAN KIRILLOVICH
1927
5 December 2001
10
IZOSIN
VASILIY PETROVICH
1927
22 April 2002
11
IZOSINA
ANTONINA PETROVNA
1926
11 April 2002
12
KASYANOV
ALEKSANDR PAVLOVICH
1934
18 December 2002
13
KHRYUKINA
NADEZHDA PETROVNA
1928
13 June 2002
14
KLETSOVA
NATALYA MIKHAYLOVNA
1936
26 June 2002
15
KOCHUBEY
ANATOLIY SERGEYEVICH
1952
26 June 2002
16
KOLPAK
VERA MIKHAYLOVNA
1941
7 November 2001
17
KONOSHEVICH
VALERIY NIKOLAYEVICH
1946
31 May 2002
18
KOROBKOV
VLADIMIR ANDREYEVICH
1937
14 January 2001
19
LANTSOV
NIKOLAY MIKHAYLOVICH
1934
5 December 2002
20
LEONARD
VLADIMIR GRIGORYEVICH
1935
7 November 2001
21
LISHCHUK
NINA VASYLYEVNA
1953
10 June 2002
22
LITOVSKAYA
KLAVDIYA YEFIMOVNA
1938
28 November 2001
23
LITVINOVA
VASILISA SEMYONOVNA
1912
18 March 1998
24
MASLOVA
LIDIYA SEMYONOVNA
1936
23 May 2002
25
MUKHA
OLIMPIADA IVANOVNA
1936
28 November 2001
26
MURAVYOVA
MARIYA GRIGORYEVNA
1929
21 November 2001
27
NIKITINA
VERA LEONTYEVNA
1936
14 January 2002
28
NORETS
GALINA FYODOROVNA
1927
24 April 2002
29
PALAMARCHUK
VLADIMIR VASILYEVICH
1948
5 December 2001
30
PANCHUGIN
VALENTIN GRIGORYEVICH
1941
5 December 2001
31
POTERPEYEV
PYOTR IVANOVICH
unspecified
21 November 2001
32
SAVENKO
VLADIMIR SAVELYEVICH
1936
5 December 2002
33
SELIVESTROV
NIKOLAY PAVLOVICH
1946
22 April 2002
34
SERGEYEV
NIKOLAY LEONTYEVICH
1939
5 December 2001
35
SHCHEDRINA
ANNA DMITRIYEVNA
1938
11 January 2002
36
SHEKERA
NIKOLAY MARKOVICH
1935
19 July 2002
37
SHEKERA
IVAN MARKOVICH
1937
12 June 2002
38
SHILEPINA
NINA PAVLOVNA
1939
31 October 2001
39
SOVRASOVA
RAISA ANDREYEVNA
1932
14 January 2002
40
SUKHOV
NIKOLAY MIKHAYLOVICH
1960
17 June 2002
41
SYSOYEVA
KSENYA GRIGORYEVNA
1924
21 June 2001
42
TARASOV
FYODOR NIKITICH
unspecified
25 September 2002
43
TARASOVA
VALENTINA VLADIMIROVNA
unspecified
12 March 1999
44
TIKHONOV
VALERIY VIKTOROVICH
1963
14 May 2002
45
TIKHONOVA
VALENTINA ILYINICHNA
1936
12 June 2002
46
TOKAREV
LEONID ALEKSEYEVICH
1935
28 May 2002
47
VITVITSKAYA
RAISA ALEKSANDROVNA
1928
29 January 2003
48
VORONAYA
MATRYONA FYODOROVNA
1925
12 June 2002
49
YESIPOVICH
ALEKSEY GRIGORYEVICH
1933
14 January 2002
50
YEVDOKIMOV
ALEKSEY VASILYEVICH
1931
14 January 2002
51
ZAKURDAYEVA
VALENTINA FYODOROVNA
1935
12 June 2002
52
ZMIYEVSKAYA
YEFROSINIYA MIKHAYLOVNA
1922
31 May 2002
53
ZOLOTOVERKHOVA
VERA DMITRIYEVNA
1927
26 June 2002
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