FIFTH SECTION
CASE OF TERNOVIK AND OTHERS v. UKRAINE
(Application no. 19430/06 and 19 other applications)
JUDGMENT
This version was rectified on 5 June 2013
under Rule 81 of the Rules of Court
STRASBOURG
11 April 2013
This judgment is final. It may be subject to editorial revision.
In the case of Ternovik 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 19 March 2013,
Having noted that the underlying legal issue in the applications is already the subject of well-established case-law of the Court (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, 15 October 2009),
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in 20 applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, except for the applicant in application no. 64583/09, who is a Russian national. Their personal details are set out in the appended table (“the applicants”).
2. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Nazar Kulchytskyy.
3. On 4 February 2013 the Russian Government informed the Court that they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the Court’s proceedings concerning the above application.
4. The applications, which mainly concern the issues of lengthy failure to enforce domestic decisions given in the applicants’ favour, were communicated to the Government on various dates.
5. On various dates the Government submitted to the Court a number of unilateral declarations aimed at resolving the non-enforcement issues. The Government requested the Court to strike the applications concerned out of the list of cases pursuant to Article 37 § 1 (c) of the Convention on the basis of the declarations. The Court examined the declarations and decided to reject the Government’s request.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
6. On the dates set out in the appended tables domestic courts delivered judgments according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The judgments became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time because of the authorities’ failure to take specific budgetary or regulatory measures, because of the introduction of bans on the attachment and sale of property belonging to State-owned or controlled companies.
7. With the exception of applications no. 25358/06, 1777/08, 20895/09 and 64583/09 in which the judgment in the applicant’s favour was enforced on 2 June 2011, 18 April 2008, 9 July 2009 and on 18 January 2011 the domestic decisions in all other applications have not been enforced in full.
8. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.
THE LAW
I. JOINDER OF THE APPLICATIONS
9. In view of the similarity of the applications in terms of the principal legal issue raised, the Court finds it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
10. 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, expressly or in substance, Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 which read, in so far as relevant, as follows:
Article 6
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time 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.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...
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.”
11. The Court notes that the applicants’ above complaints 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.
12. The Court finds that the judgments in the applicants’ favour were not enforced in due time, for which the State authorities were responsible
13. Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov, cited above, §§ 56-58 and 66-70), 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 judgments in the applicants’ favour. It also considers that there had 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
14. Some of the applicants raised other complaints under the Convention which the Court has carefully examined. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
15. It follows that those complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. 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.”
17. In the present case, bearing in mind its previous decision on the matter (see Kharuk and Others v. Ukraine [Committee], no.703/05 and 115 other applications, § 25, 26 July 2012), the Court considers it reasonable and equitable to award 3,000 euros (EUR) to each applicant in the applications which concern non‑enforcement delays exceeding three years and EUR 1,500 to each applicant in the other applications. These sums are to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.
18. The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable.
19. 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 join the applications;
2. Declares the applicants’ complaints under Article 6 § 1 and 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 admissible and the remainder of the applications inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1;
4. Holds that there has been a violation of Article 13 of the Convention;
5. Holds
(a) that the respondent State is to enforce the domestic decisions in the applicants’ favour which remain enforceable, and is to pay, within three months, EUR 3,000 (three thousand euros) to each applicant or his or her estate in the applications tabulated in Appendix 1 and EUR 1,500 (one thousand five hundred euros) to the applicant in the application tabulated in Appendix 2 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 11 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
APPENDIX 1
(non-enforcement delays more than three years)
No.
Application
no. and date of introduction
Applicant name, date of birth
and place of residence
Relevant domestic decisions
19430/06
20/04/2006
Vasiliy Aleksandrovich TERNOVIK
18/01/1960
Novogrodovka
Novogrodivka Court, 17/09/1998
25358/06
30/05/2006
Vasyl Grygorovych DYABELKO
14/02/1956
Sumy
Kovpakivskyy District Court of Sumy, 11/08/2005
2555/07
13/12/2006
Valeriy Ivanovich ZVENIGORODSKIY
09/07/1951
Kirovograd
Leninskyy District Court of Kirovograd, 21/08/2001
2560/07
13/12/2006
Anatoliy Vasilyevich PIROZHENKO 26/08/1940
Pavlysh
Vladimir Anatolyevich TOMILO
08/09/1963
Pavlysh
Applicant 1:
Leninskyy District Court of Kirovograd, 21/08/2001
Applicant 2:
Leninskyy District Court of Kirovograd, 21/08/2001
39111/07
08/08/2007
Mikhail Viktorovich KOPEYKO
04/02/1976
Makiyivka
Gornyatskyy District Court of Makeyivka, 19/09/2005
1777/08
30/12/2007
Sergey Aleksandrovich BOBROVSKIY
13/02/1964
Mariupol
Prymorskyy District Court of Mariupol, 05/07/2004
4988/08
24/12/2007
Viktoriy[1] Gennadyevich TITARENKO
13/07/1974
Velyki Bubyshcha
Krasnyy Luch Court, 16/06/2005
13791/08
05/03/2008
Olga Nikolayevna SKOBINA
07/02/1960
Vakhrushevo
Krasnyy Luch Court, 12/05/2005
25997/08
15/05/2008
Vladimir Leonidovich LUKICHEV
17/09/1961
Sevastopol
Lyudmila Mikhaylovna BELKINA
17/12/1947
Sevastopol
Applicant 1
Gagarinskyy District Court of Sevastopol, 26/11/2007
Applicant 2
Gagarinskyy District Court of Sevastopol, 26/11/2007
27005/08
27/05/2008
Nataliya Volodymyrivna YURCHENKO
02/03/1982
Kozelets
Kozelets Court, 12/11/2007
27421/08
16/05/2008
Vasyl Mykolayovych KRUPA
16/09/1982
Utoropy
Kolomyya Court, 11/01/2006
27897/08
03/06/2008
Igor Fyodorovich PROKOPENKO
10/04/1967
Konotop
Konotop Court, 06/11/2007
42269/08
13/08/2008
Vasiliy Petrovich KOCHURA
12/08/1929
Torez
Torez Court, 31/01/2002
60798/08
26/11/2008
Andriy Igorovych SAMUS
29/10/1963
Kyiv
Kyiv City Court of Appeal, 09/06/2003
23248/09
06/04/2009
Petro Ivanovych MAZHAROV
26/04/1938
Kyiv
Obolonskyy District Court of Kyiv, 13/06/2007
64583/09
17/11/2009
Vladislav Yevgenyevich SHCHEGOLKOV
22/10/1962
Voronezh
Gagarinskyy District Court of Sevastopol, 04/04/2007
21509/10
30/03/2010
Anatoliy Oleksiyovych GERASKO
18/07/1950
Pershotravneve
Higher Administrative Court, 02/04/2008
43535/10
06/07/2010
Ryurik Petrovich RODICHEV
26/02/1937
Krasnyy Luch
Krasnyy Luch Court, 30/05/2007
56208/10
07/09/2010
Lyudmila Vladimirovna SHKARINA
26/03/1956
Vakhrushevo
Krasnyy Luch Court, 15/07/2005
APPENDIX 2
(non-enforcement delays less than three years)
No.
Application
no. and date of introduction
Applicant name, date of birth
and place of residence
Relevant domestic decisions
20895/09
08/04/2009
Mykola Ivanovych DMYTRENKO
17/04/1956
Cherkasy
Prydniprovskyy District Court of Cherkasy, 13/08/2007
[1]. Rectified on 5 June 2013: the last name was “Viktor”.
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