FIFTH SECTION
DECISION
Application no. 16093/06 by Olga Mykolayivna LYTVYNENKO
and 8 other applications against Ukraine
(see annex for other applications)
The European Court of Human Rights (Fifth Section), sitting on 14 December 2010 as a Committee composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications lodged on various dates,
Having regard to the decision to apply the pilot-judgment procedure taken in the case of Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, ECHR 2009‑... (extracts)),
Having regard to the unilateral declaration submitted by the respondent Government requesting the Court to strike the applications out of the list of cases and the Government's letter of 9 December 2010 amending the aforesaid declaration,
Having deliberated, decides as follows:
THE FACTS
The applicants are 9 Ukrainian nationals whose names and dates of birth are tabulated below. The Ukrainian Government (“the Government”) were represented by Mr Yuriy Zaytsev, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On the dates set out in the annexed table below the national courts held for the applicants and ordered the authorities to pay various amounts to the applicants.
These judgments became binding but the authorities delayed their enforcement.
COMPLAINTS
The applicants complained about the delayed enforcement of the judgments in their favour and, in certain cases, of assorted faults that allegedly accompanied the judicial or enforcement proceedings. Some of the applicants also raised other complaints.
THE LAW
The Court first considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common legal background.
A. Complaints concerning lengthy non-enforcement of the judgments in the applicants' favour
Following the Yuriy Nikolayevich Ivanov pilot judgment cited above, in September 2010 the Government submitted to the Court the unilateral declaration aimed at resolving the issue raised by the applications. They requested the Court to strike out the applications in accordance with Article 37 of the Convention. The declaration reads as follows:
“The Government of Ukraine acknowledge the excessive duration of the enforcement of the applicants' judgments.
The Government are ready to pay to the applicants the outstanding debts according to the judgements of the national authorities, as well as to pay the applicants ex gratia the sums in accordance with annex no. 1 to this declaration.
The Government therefore invite the Court to strike the applications out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The sums ex gratia are to cover any pecuniary and non-pecuniary damage as well as costs and expenses and will be free of any taxes that may be applicable. They will 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 undertake 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 will constitute the final resolution of the cases.”
The majority of the applicants disagreed on various grounds. One applicant failed to reply. The Court reiterates that under Article 37 of the Convention 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 (a), (b), or (c) of that Article.
On 9 December 2010 the Government sent a letter expressing their intent to amend the above declaration and to include the provision that the ex gratia sums “be converted into the national currency of the respondent State at the rate applicable at the date of settlement” in order to be able to effect the payment.
Article 37 § 1 (c) enables the Court in particular to 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 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 reiterates that in its pilot judgment (Yuriy Nikolayevich Ivanov v. Ukraine, cited above) it recently ordered Ukraine to
“grant such redress, within one year from the date on which the judgment becomes final, to all applicants whose applications pending before the Court were communicated to the Government under Rule 54 § 2 (b) of the Rules of Court before the delivery of the present judgment or will be communicated further to this judgment and concern arguable complaints relating solely to the prolonged non-enforcement of domestic decisions for which the State was responsible, including where complaints alleging a lack of effective remedies in respect of such non-enforcement are also raised;.”
In the same judgment the Court also held that
“pending the adoption of the above measures, the Court will adjourn, for one year from the date on which the judgment becomes final, the proceedings in all cases in which the applicants raise arguable complaints relating solely to the prolonged non-enforcement of domestic decisions for which the State is responsible, including cases in which complaints alleging a lack of effective remedies in respect of such non-enforcement are also raised, without prejudice to the Court's power at any moment to declare any such case inadmissible or to strike it out of its list following a friendly settlement between the parties or the resolution of the matter by other means in accordance with Articles 37 or 39 of the Convention.”
Having examined the terms of the Government's declaration, the Court understands it as intending to give the applicants redress in line with the pilot judgment (see Yuriy Nikolayevich Ivanov v. Ukraine, cited above, §§ 82 and 99 and point 6 of the operative part).
The Court is satisfied that the Government explicitly acknowledge the excessive length of the execution of judgments in the applicants' favour. It also notes that the compensations that the Government offered are comparable with Court awards in similar cases, taking account, inter alia, of the specific delay(s) 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, the relevant parts of the applications which concern the applicants' complaints of the lengthy non-enforcement of judgments in their favour should be struck out of the list.
B. Remainder of the complaints
Having carefully examined the remainder of the applicants' complaints in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these parts of the applications are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 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 excessive duration of the enforcement of the judgments in the applicants' favour, as amended;
Decides to strike the applications out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Stephen PhillipsRait Maruste
Deputy RegistrarPresidentANNEX
No.
Appl. Number
Name(s) of the applicant(s)
Date of introduction
Domestic decisions about the lengthy non-enforcement of which the applicants complain (name of the court or of another authority, date of the decision)
Compensation offered (euro)
1
16093/06
LYTVYNENKO
OLGA MYKOLAYIVNA
07/04/2006
07.09.2004 Kryukivskyy District Court of Kremenchuk
525
2
16822/06
TISHCHENKO NIKOLAY NIKIFOROVICH
13/04/2006
1) 13.08.2001, Kupyansk Court
2) 20.03.2001, Kupyansk Court
1,470
3
28046/07
PARASEY
LYUBOV VASYLIVNA
02/06/2007
28.08.2003, Zavodskyy District Court of Mykolayiv
1,260
4
33061/07
GATCHENKO STANISLAV
LEONIDOVICH
02/07/2007
21.12.2006, Gagarinskyy District Court of Sevastopol
660
5
33684/07
MARKOV
IGOR ANATOLIYOVYCH
24/07/2007
18.11.2005, Leninskyy District Court of Mykolayiv,
645
6
41189/07
PLYSYUK
OLEG ZINOVIYOVYCH
06/09/2007
06.05.2004, Ternopil Court
1,125
7
14083/08
OLEFIRENKO OLEKSANDR VOLODYMYROVYCH
28/02/2008
26.10.2005, Kyiv Commercial Court (amended by the Kyiv Commercial Court of Appeal on 17.01.2006)
795
8
30858/08
ROMANENKO OLEKSANDR OLEKSIYOVYCH
14/06/2008
14.03.2006, Romny Court
795
9
33734/09
SOBOLEV
VITALIY YAKOVLEVICH
04/06/2009
1) 14.12.2000, Bryanka Court
2) 23.03.2000, Alchevsk Court
1,875
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