FIFTH SECTION
DECISION
Applications nos. 24466/07 and 11063/09
Valeriy Pavlovych KONOSH against Ukraine
and Sergey Anatolyevich KUKIS against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 10 May 2012 as a Committee composed of:
Mark Villiger, President,
Karel Jungwiert,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications lodged on 22 May 2007 and 13 February 2009,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Valeriy Pavlovych Konosh (“the first applicant”) and Mr Sergey Anatolyevich Kukis (“the second applicant”), are Ukrainian nationals who were born in 1973 and 1960, respectively, and live in Oleksandriya. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice.
On 20 March and 22 November 2006 the Oleksandria Court delivered two judgments in favour of the first applicant and ordered the Energovugillya company (“the debtor”) to pay him certain pecuniary amounts.
On 20 March 2006 the above court delivered a judgment in favour of the second applicant and ordered the same debtor to pay him certain pecuniary amounts (the judgment was further amended on appeal on 30 May 2006).
The judgments in the applicants’ favour became final but remain unenforced due to the debtor’s lack of funds.
COMPLAINTS
The applicants complained about non-enforcement of the above judgments.
THE LAW
1. The Court considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
2. Following the Yuriy Nikolayevich Ivanov pilot judgment (no. 40450/04, ECHR 2009-... (extracts)), on 7 November 2011 the Government informed the Court that the debtor under the applicants’ judgments was a private company. However, between 28 November 2005 and 30 July 2010 it was included in the Register of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the 2005 Act on measures designed to ensure the stable functioning of fuel and energy enterprises (“the Register”) and all enforcement proceedings in respect of it were frozen. Therefore, the Government bore responsibility for the debtor’s actions from the moment when the applicants’ judgments became final and until it was excluded from the Register. As regards any subsequent period, the Government submitted that the State was not responsible for the private company’s debts, as its responsibility extended no further than the involvement of the State bodies in the enforcement proceedings, while the applicants had not challenged before the domestic courts the Bailiffs’ alleged inactivity in the enforcement of their judgments and had not claimed damages from the Bailiffs.
The Government also submitted a unilateral declaration aimed at resolving the issues raised by the applicants. In particular, they acknowledged the excessive duration of the enforcement of the applicants’ judgments and accepted the responsibility for the debtor’s actions from the moment when those judgments became final and until the debtor was excluded from the Register. They also offered to pay 780 and 750 euros, respectively, to the first and the second applicant.
The Government further invited the Court to strike the applications out of the list of cases and suggested that the declaration might be accepted by the Court as “any other reason” justifying the striking out of the case under Article 37 § 1 (c) of the Convention.
The declaration also provided that the above sums were to cover any pecuniary and non-pecuniary damage as well as costs and expenses, to be converted into the national currency of Ukraine at the rate applicable at the date of settlement, and would be free of any taxes that might be chargeable. They would be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertook to pay simple interest on them 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. This payment would constitute the final resolution of the cases.
The applicants disagreed with the terms of the declaration considering that the sums offered by the Government were too low.
The Court reiterates that it may at any stage of the proceedings strike an application out of its list of cases where the circumstances lead to the conclusions specified under Article 37 § 1 (a)-(c) of the Convention. In particular, under Article 37 § 1 (c) the Court may strike a case out of its list if for any other reason established by the Court, it is no longer justified to continue the examination of the application.
Article 37 § 1 in fine states:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires”.
The Court also reiterates that in certain circumstances it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration made by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
The Court recalls that in the aforementioned pilot judgment it ordered Ukraine to grant redress to the applicants whose applications were communicated to the Government before the delivery of the judgment or would be communicated further to the judgment and concerned complaints about the prolonged non-enforcement of domestic decisions for which the State was responsible (see Yuriy Nikolayevich Ivanov v. Ukraine, cited above, § 99 and point 6 of the operative part). Having examined the terms of the Government’s declaration, the Court understands it as intending to give the applicants the redress in accordance with the pilot judgment.
The Court is satisfied that the Government explicitly acknowledged the responsibility of the State for the excessive duration of the enforcement of the applicants’ judgments in the periods from the moment when those judgments became final and until the debtor was excluded from the Register. It also notes that the sums offered by the Government and covering those periods are comparable with the Court’s awards in similar cases, taking account, inter alia, of the specific delay in each particular case. The Court therefore considers that it is no longer justified to continue the examination of the relevant parts of the applications. It is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of these parts of the applications. Accordingly, they should be struck out of the list.
3. As regards the applicants’ complaints about non-enforcement of their judgments after the exclusion of the debtor from the Register, the Court recalls that the State cannot be held responsible for a private company’s lack of funds and its responsibility extends no further than the involvement of State bodies in the enforcement proceedings. The Ukrainian legislation provides for a possibility of challenging before the courts the State Bailiffs’ alleged inactivity in the enforcement proceedings and for claiming damages from them (see, for instance, Novitskiy v. Ukraine (dec.), no. 20324/03, 16 October 2007), but the applicants have not availed themselves of this possibility. It follows that these complaints must be declared inadmissible pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Takes note of the terms of the respondent Government’s declaration in respect of the applicants’ complaints about non-enforcement of their judgments in the periods from the moment when the judgments became final and until the debtor was excluded from the Register;
Decides to strike the applications out of its list of cases in so far as they relate to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remaining complaints inadmissible.
Stephen PhillipsMark Villiger
Deputy RegistrarPresident
Full & Egal Universal Law Academy