FIFTH SECTION
DECISION
Application no. 6161/05
Leonid Leonidovich KOLESNIKOV and Lyudmila Vasilyevna KOLESNIKOVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 15 October 2013 as a Committee composed of:
Boštjan M. Zupančič, President,
Ann Power-Forde,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 1 February 2005,
Having regard to the declaration submitted by the respondent Government on 4 April 2012 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicants, Mr Leonid Leonidovich Kolesnikov and Ms Lyudmila Vasilyevna Kolesnikova, are Ukrainian nationals, who were born in 1972 and 1947 and live in Sevastopol. They were represented before the Court by Mr M.N. Fostiy, a lawyer practising in Sevastopol.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice.
From 1977 the applicants resided in a hostel which initially belonged to the Sevastopol State Aircraft Company (“the Company”). In 1989 the applicants were moved to another building pending renovation of the hostel by its owner. In the meantime the hostel became a property of private persons, N. and K. Upon return the new hostel owner cut the electricity and water supply so the applicants were forced to move out.
In 2000 the applicants instituted proceedings complaining about a breach of their housing rights. On 19 December 2002 the Gagarinskyy District Court found in part for the applicants. It ordered K. not to frustrate the applicants’ access to the building and to restore the electricity and water supply. It further ordered the Company to provide the applicants with another place of residence. The court also awarded the applicants compensation in the total amount of 4,000 Ukrainian hryvnias (UAH) to be paid by the Company, N. and K. in specified proportions.
In decisions of 25 June and 9 December 2003 the District Court and the Sevastopol City Court of Appeal, respectively, amended that judgment in the part relating to the Company’s obligation to provide the applicants with “another place of residence”, stating, inter alia, that the Company had to provide the applicants with a two-room flat in Sevastopol. Furthermore, in the latter decision the Sevastopol City Court of Appeal upheld the remainder of the lower court’s findings and the judgment of 19 December 2002 became enforceable.
On an unspecified date before 26 February 2004 the Company appealed in cassation. On 6 December 2007 the Court of Appeal of the Autonomous Republic of Crimea, sitting as a court of cassation, allowed in part that appeal; the court quashed the decisions of 19 December 2002, 25 June and 9 December 2003 as being procedurally defective (for instance, for failure to examine the case at a plenary court session and to address all claims) and remitted the case to the first instance court for fresh consideration.
On 12 October 2011 the Higher Specialised Court in Civil and Criminal Matters upheld the lower courts’ decisions by which the courts ordered the Company to pay the applicants UAH 5,000 in compensation for non-pecuniary damage and to provide them with an apartment.
The applicants complained under Article 6 § 1 of the Convention about the lengthy non-enforcement of the court judgment of 19 December 2002. They further complained under Article 8 of the Convention that by failing to do so the State had fallen short of its obligation to safeguard their right to respect for their home and their private and family life. The applicants also relied on Article 1 of the Convention and Article 1 of Protocol No. 1.
The applicants’ complaints under Articles 6 § 1 and 8 of the Convention were communicated to the Government.
After the communication of the case and exchange of the parties’ observations, by letter dated 4 April 2012 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application.
They acknowledged the excessive duration of the non-enforcement of the judgment delivered in the applicants’ favour from the date the judgment had been delivered to the date it was quashed. They undertook to pay to each of the applicants 720 EUR euros to cover any pecuniary and non-pecuniary damage as well as costs and expenses, to be converted into the national currency at the rate applicable on the date of payment, and to be free of any taxes that may be applicable. It would be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. They further requested the Court to strike out the application.
On 7 May 2012, the Court received a letter from the applicants informing the Court that they had agreed to the terms of the Government’s declaration.
THE LAW
1. Having regard to the applicants’ complaint under Article 6 § 1 of the Convention about the lengthy non-enforcement of a court judgment of 19 December 2002 given in their favour, the Court finds that following the applicants’ express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.
It therefore takes note of the friendly settlement reached between the parties in so far as it relates to the above complaint. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.
The Court also considers that the settlement also covers the applicants’ complaint under Article 8 of the Convention with regard to the lengthy non-enforcement of the final judgment delivered in their favour, as it is in substance the same issue.
In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaints.
2. The applicants also complained under Article 8 of the Convention about their eviction. The applicants also relied on Article 1 of the Convention and Article 1 of Protocol No. 1.
Having carefully examined these complaints 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.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike part of the application out of its list of cases pursuant to Article 39 of the Convention in so far as it relates to the complaints about the lengthy non-enforcement of judgment given in the applicants’ favour;
Declares the remainder of the application inadmissible.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy