FIFTH SECTION
CASE OF YAVOROVENKO AND OTHERS v. UKRAINE
(Application no. 25663/02 and 30 others – see list appended)
JUDGMENT
This version was rectified on 2 March 2015
under Rule 81 of the Rules of Court.
STRASBOURG
17 July 2014
This judgment is final. It may be subject to editorial revision.
In the case of Yavorovenko 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 24 June 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in 31 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 and Russian (application no. 54769/08) nationals as well as companies based in Ukraine, Cyprus (application no. 23581/03) and Romania (application no. 22422/05). The details of the applicants are specified in the appended table (“the applicants”).
2. In application no. 34384/05 the applicant died in course of the proceedings before the Court. The next of kin of the applicant expressed the wish to maintain the application of their deceased family member.
3. In application no. 54769/08 one of the applicants, Ms Klavdiya Nikolayevna Galayda, died in course of the proceedings before the Court. No one expressed the wish to maintain her application.
4. In application no. 26330/09 a court decision was delivered in favour of the applicant’s deceased father in law. The applicant, providing documents in support, claims to be his lawful successor in title.
5. In application no. 30843/08 the court decisions were delivered in favour of the legal entity which was later liquidated. The applicant company, providing documents in support, claims to be its lawful successor in title.
6. On 10 April 2012 the Court, having accepted the unilateral declarations of the Government in applications nos. 23056/07 and 24245/10, decided to strike these applications out of its list of cases.
7. On various dates following the decision to strike out the applications nos. 23056/07 and 24245/10, the applicants informed the Court that Government had paid the compensation amount, but had failed to enforce the judgments of the domestic courts. In particular, in application no. 23056/07 the applicant complains of non-enforcement of the judgment of the Shevchenkivskyy District Court of Kyiv dated 4 February 2005 and in application no. 24245/10 the applicant complains of non-enforcement of the judgment of the Oleksandriya Court dated 22 October 2010.
8. The applicants requested, therefore, to restore their applications in the Court’s list of cases.
9. The applicants’ letters were sent to the respondent Government for comments. In their replies the Government confirmed that the relevant judgments of the domestic courts remained unenforced. According to information provided by the Government in their letter dated 19 September 2013 and in view of the judgment of the Shevchenkivskyy District Court of Kyiv adopted on 9 July 2013 and annexed to that letter, the enforcement proceedings which were the subject matter of application no. 23056/07 were terminated on 17 April 2013 (decision fully enforced).[1]
10. On 28 May 2013 (in application no. 23056/07) and on 17 December 2013 (in application no. 24245/10) the Court decided to grant the requests of the applicants and to restore the applications to the Court’s list of cases in accordance with Rule 43 § 5 of the Rules of Court.
11. The applications listed in the Appendix to the present judgment were communicated to the Government on various dates.
12. The Government were represented by their Agent.
13. The Cypriot and Romanian Governments, having been informed of their right to intervene in the proceedings in respect of the applicants in applications nos. 23581/03 (lodged by a legal entity registered in Cyprus) and 22422/05 (lodged by a legal entity registered in Romania), indicated that they did not wish to exercise that right.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
14. On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.
15. 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
16. In view of the similarity of the applications set out in the Appendix in terms of the principal legal issues raised, the Court finds it appropriate to join them.
II. AS TO THE LOCUS STANDI OF THE APPLICANTS IN APPLICATIONS Nos. 26330/09 AND 34384/05
17. The Court notes that applications nos. 26330/09 and 34384/05 concern a property right which is in principle transferable to the heirs. In these circumstances the Court considers that the applicants or their next of kin have standing to continue the present proceedings in their stead (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006).
III. AS TO THE LOCUS STANDI OF THE APPLICANT IN APPLICATION No. 30843/08.
18. The Court notes that application no. 30843/08 concerns a property right which is in principle transferable to the successors. In these circumstances the Court considers that the applicant company – being a lawful successor of the liquidated creditor company - has standing to initiate the present proceedings instead of it (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006).
IV. AS TO THE LOCUS STANDI OF Mr VADYM YEVGENOVYCH MYKHAYLENKO (THE SECOND APPLICANT IN APPLICATION No. 18330/05)
19. In application no. 18330/05 the applicants, a legal entity Galon, TOV (first applicant) and Mr Vadym Yevgenovych Mykhaylenko (second applicant), complain about the lengthy non-enforcement of the judgment of the Higher Arbitration Court dated 26 December 2000. The domestic court allowed the claim of the first applicant. On 27 June 2003, on 1 August 2003 and on 29 October 2003 the Kyiv City Commercial Court modified the enforcement of the judgment dated 26 December 2000 and obliged the Ministry of Defence to pay the first applicant UAH 701,926[2]. On 16 May 2006 the amount was transferred to the bank account of the first applicant. The decision was enforced after 5 years and 4 months.
20. In their observations the Government, inter alia, informed the Court that Mr Mykhaylenko (second applicant) was not a party in the domestic Court proceedings and he could not, therefore, claim to be a victim of the alleged violations of the Convention.
21. The Court agrees with the Government and declares this application as concerns the complaints of Mr Vadym Yevgenovych Mykhaylenko (second applicant) inadmissible pursuant to Article 35 § 3 (a) of the Convention.
V. STRIKE OUT OF THE APPLICATION LODGED BY Ms KLAVDIYA MYKOLAYIVNA GALAYDA (ONE OF THE APPLICANTS IN APPLICATION No. 54769/08)
22. By letter dated 12 July 2011 the Court was informed that Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no. 54769/08, had died after lodging the application before this Court. No person expressed the wish to support her application.
23. In view of the above the Court decides to strike out from its list of cases the application lodged by Ms Klavdiya Mykolayivna Galayda, since the applicant 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 the complaints.
VI. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
24. The applicants listed in the Appendix complained about the lengthy non-enforcement of the decisions given in their favour, as specified in the Appendix, and about the lack of the effective domestic remedies in respect of those complaints. Expressly or in substance they relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.
25. The Court notes that the above complaints (with the exception of the complaints raised by Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no. 54769/08 and by Mr Mykhaylenko, second applicant in application no. 18330/05, see paragraphs 17-19 above) 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.
26. The Court finds that the decisions in the applicants’ favour were not enforced in due time, for which the State authorities were responsible.
27. 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.
VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
28. Some of the applicants raised other complaints under the Convention, which the Court has examined carefully. 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.
29. 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.
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
30. 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.”
31. The Court notes that application nos. 23056/07 and 24245/10 were initially struck out of the Court’s list of cases by two separate decisions on 10 April 2012 in the light of unilateral declarations in which the Government, as well as acknowledging a violation of the Convention and offering to pay 1,020 euros (EUR) in application no. 23056/07 and 540 euros (EUR) in application no. 24245/10, “expressed their readiness to enforce the judgments which [had] not been enforced yet” (application no. 23056/07) and “declared that they were ready to pay to the applicants the outstanding judgment debts” (application no. 24245/10). Those cases were restored to the Court’s list of cases at the applicants’ request as the underlying judgment debts were not paid, although the compensation payments had been duly effected. The Government accepted that the judgment had not been enforced in application no. 23056/07, and referred to “technical errors” which had taken place in application no. 24245/10. They did not contend that the judgment debts did not fall to be enforced, for example because they had been enforced in the interim. In these circumstances, the Court considers that the “failed” unilateral declaration process should not be taken into consideration in determining any Article 41 award which should be made in these two applications, and will deal with them in the same manner as the remaining applications in the present case, that is, without deduction of the amounts already paid.
32. 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 (except Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no. 54769/08; in application no. 18330/05 only to the first applicant, Galon, TOV). This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.
32. The Court further notes that the respondent State has an outstanding obligation to enforce the decisions which remain enforceable.
33. 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 set out in the Appendix;
2. Declares the complaints of the applicants listed in the Appendix (in application no. 18330/05 only with regard to the first applicant, Galon, TOV) 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 their 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 within three months the respondent State is to enforce the domestic decisions in the applicants’ favour which remain enforceable, and is to pay EUR 2,000 (two thousand euros) to each applicant (or his or her estate) listed in the Appendix (except Ms Klavdiya Mykolayivna Galayda, one of the applicants in application no. 54769/08; in application no. 18330/05 only to the first applicant, Galon, TOV) 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;
6. Decides to strike application no. 54769/08 in part lodged by Ms Klavdiya Mykolayivna Galayda out of its list of cases.
Done in English, and notified in writing on 17 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
APPENDIX
No.
Application no. and date of introduction
Applicant name
date of birth
place of residence
Relevant domestic decision
25663/02
21/06/2002
Mykola Mykhaylovych YAVOROVENKO
05/01/1949
Vinnytsya
1) Zamostyanskyy District Court of Vinnytsya, 01/03/2004
2) Leninskyy District Court of Vinnytsya, 28/03/2006
3) Zamostyanskyy District Court of Vinnytsya, 16/10/2006
4) Zamostyanskyy District Court of Vinnytsya, 06/04/2007
5) Leninskyy District Court of Vinnytsya, 27/11/2006
23581/03
16/06/2003
LINDSELL ENTERPRISES LIMITED
1) Odesa Regional Commercial Court, 14/12/2000 as rectified by the Odesa Regional Commercial Court on 23/04/2001
2) Odesa Regional Commercial Court, 17/12/2001 as amended by the Odesa Commercial Court of Appeal on 20/01/2003, on 11/02/2004 and on 12/05/2004
4097/04
17/12/2003
GRIG
Simferopol
Crimea Commercial Court, 17-21/04/2003
17556/04
05/04/2004
Vadym Volodymyrovych VASKO
03/05/1972
Kyiv
Pecherskyy District Court of Kyiv, 04/12/2000 in the light of the judgment of the Golosiyivskyy District Court of Kyiv, 13/10/2003
27218/04
21/04/2004
AKVATON, TOV
Rivne
Cherkasy Regional Commercial Court, 18/03/2003
10000/05
25/02/2005
Raisa Vladimirovna TKACHOVA
24/05/1951
Chornomorsk
Yelena Vasilyevna PETLYAK
08/07/1966
Chornomorsk
Valentina Nikolayevna IYEVLEVA
29/06/1960
Chornomorsk
Tatyana Anatolyevna VETROVA
10/01/1962
Chornomorsk
Yelena Alekseyevna KLIMENKO
02/10/1964
Chornomorsk
1) Chornomorskyy District Court of Crimea, 13/11/2002 as amended by the Court of Appeal of Crimea, 31/03/2003
2) Chornomorskyy District Court of Crimea, 21/04/2006
3) Chornomorskyy District Court of Crimea, 26/12/2007
18330/05
13/05/2005
GALON, TOV
Kyiv
Vadym Yevgenovych MYKHAYLENKO[3]
21/03/1964
Kyiv
Higher Arbitration Court, 26/12/2000 in the light of the ruling of the Kyiv City Commercial Court of 27/06/2003
21463/05
30/04/2005
Mykola Prokopovych KOROL
05/06/1943
Polilnya
Zhytomyr Regional Court of Appeal, 31/01/2005
21954/05
27/05/2005
ZODIAK, ZAT
Sumy
1) Donetsk Regional Commercial Court, 19/12/2000 as amended by the Donetsk Regional Commercial Court on 17/04/2001
2) Enforcement writ of Sumy private notary Olga Areshyna, 26/04/2001
3) Order no. 4251 - 12/270 of the Sumy Regional Commercial Court, 26/05/2003
4) Order no. 9/254 of the Sumy Regional Commercial Court, 18/09/2003
22422/05
10/06/2005
INDUSTRIALEXPORT S.A.
Kyiv
International Commercial Arbitration Court at the Ukrainian Chamber of Commerce, 20/02/1997 in light of the judgment of the
Kyiv City Commercial Court dated 29/08/2007
30706/05
04/08/2005
Lenina Abramivna MAREKHBEYN
04/11/1944
Lviv
Frankivskyy District Court of Lviv, 10/07/2003
34384/05
10/09/2005
Yevgeniy Petrovich ORLOV
26/01/1937
Dneprodzerzhynsk
Bagliyskyy District Court of Dniprodzerzhynsk, 26/01/2004
41082/05
02/11/2005
Oleg Mykolayovych GRISHYN
28/06/1952
Cherkasy
Cherkasy Regional Court of Arbitration, 20/05/1998
3093/06
21/12/2005
Irina Vladislavovna MARKOVA
03/01/1962
Simferopol
Yelena Petrovna MONASHOVA
08/10/1940
Simferopol
Viktor Ivanovich SHYBAYEV
21/09/1950
Simferopol
Crimea Court of Appeal, 28/10/2003
16021/06
11/04/2006
Borys Oleksandrovych YELETSKYY
25/08/1949
Kyiv
Kyiv City Commercial Court, 21/02/2005, as amended by the Kyiv Commercial Court of Appeal on 31/05/2005 and by the Higher Commercial Court on 13/10/2005
25186/06
19/05/2006
Petr Mikhaylovich KORZHIKOV
12/07/1947
Chernigiv
Desnyanskyy District Court of Chernigiv, 28/04/2001
29072/06
05/07/2006
Sergey Nikolayevich SIDORENKO
06/03/1961
Chyguyev
Chuguyev Court 13/12/2002
23056/07
23/04/2007
Maria Leonidovna SEREDA
10/02/1935
Kyiv
Shevchenkivskyy District Court of Kyiv, 04/02/2005
49871/07
08/11/2007
Nikolay Aleksandrovich YAMPOLSKIY
01/02/1962
Georgiyivka
Leninskyy District Court of Lugansk, 05/06/2006
54469/07
03/12/2007
Viktor Alekseyevich RASPOPOV
20/10/1935
Kyiv
1) Pecherskyy District Court of Kyiv, 17/04/2006
2) Pecherskyy District Court of Kyiv, 05/03/2007
3) Pecherskyy District Court of Kyiv, 12/02/2007
2316/08
04/01/2008
Vasyl Mykolayovych MUZYCHENKO
06/05/1956
Kyiv
Minskyy District Court of Kyiv, 19/11/1998
10908/08
20/02/2008
Petro Oleksiyovych DZYUBKO
01/09/1947
Kyiv
Vyshgorodskyy District Court of the Kyiv Region, 01/10/2002, upheld by the Supreme Court on 22/01/2004
19939/08
28/03/2008
ANIS, FERMERSKE GOSPODARSTVO
Petrovske
Dnipropetrovsk Commercial Court of Appeal, 16/11/2001
30843/08
20/03/2008
UKRENERGOSTROY, TOV
Dnipropetrovsk
1) Zaporizhzhya Regional Commercial Court, 05/02/2002
2) Zaporizhzhya Regional Commercial Court, 12/02/2002
35948/08
21/07/2008
Mariya Oleksiyivna DOBROVOLSKA
18/08/1954
Kyiv
Mykola Tarasovych DOBROVOLSKYY
27/11/1949
Kyiv
Applicant 1:
1) Kyiv Commercial Court of Appeal, 29/01/2003
2) Kyiv City Commercial Court, 13/07/2006
Applicant 1 and Applicant 2:
2) Podilskyy District Court of Kyiv, 26/06/2008
54769/08
31/10/2008
Engels Ivanovych NOVOKHATKO
15/08/1925
Lugansk
Sergiy Oleksiyovych KALININ
26/07/1956
Klimovsk
Mykhaylo Oleksandrovych TARASOV
19/08/1956
Kovrov
Volodymyr Mykolayevych SYURYAYEV
09/12/1945
Orenburg
Yuriy Petrovych GALAYDA
19/06/1974
Lugansk
Klavdiya Mykolayivna GALAYDA[4]
22/05/1945
Lugansk
1) Leninskyy District Court of Lugansk, 18/08/2004,
2) Leninskyy District Court of Lugansk, 28/04/2007
23057/09
07/04/2009
Galyna Mykolayivna DONETS
05/10/1963
Lviv
Lviv Circuit Administrative Court, 30/12/2008
26330/09
04/03/2009
Dmitriy Vladimirovich VOLNA
03/05/1973
Mykolayivka
Slovyansk Court, 31/01/2000
55864/09
09/10/2009
NAIRI, IPP
Protopopivka
Kirovograd Regional Commercial Court, 14/05/2004
16112/10
01/03/2010
Nikolay Aleksandrovich KOCHEGAROV
26/02/1951
Novogrodovka
1) Novogorodivka Court, 10/02/1999
2) Novogorodivka Court, 24/03/1999
3) Novogorodivka Court, 05/05/1999
4) Novogorodivka Court, 22/03/2000
5) Novogorodivka Court, 25/01/2001
24245/10
20/04/2010
Volodymyr Ivanovych KRAVCHENKO
01/02/1949
Marto-Ivanivka
Court order of the Oleksandriya Court, 22/10/2008
[1]. Rectified on 2 March 2015: the third sentence has been added.
[2]. equivalent of about EUR 70,000 as to February 2014
[3]. The complaints of the second applicant, Mr Vadym Yevgenovych Mykhaylenko, are inadmissible ratione personae.
[4]. The application of Klavdiya Mykolayivna Galayda was struck out of the Court's list of cases as the applicant died on 26/01/2011 and no persons expressed their wish to support the application.
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