FIFTH SECTION
DECISION
Application no. 20997/11
Yuriy Arkadiyevich MAKHNO and Vladimir Arkadiyevich MAKHNO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 4 December 2012 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 21 March 2011,
Having regard to the declaration submitted by the respondent Government on 31 May 2012 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Yuriy Arkadiyevich Makhno and Mr Vladimir Arkadiyevich Makhno, are Ukrainian nationals, who were born in 1950 and 1956 respectively and live in Petropavlovka. They were represented before the Court by Mr P. A. Burda, a lawyer practising in Petropavlovka.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice.
On 6 July 2004 a public prosecutor instituted proceedings on behalf of the applicants against their former employer seeking their reinstatement and damages, which ended with a decision of the Supreme Court on 31 August 2010.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention of the unreasonable length of the proceedings. They also formulated some other complaints.
THE LAW
1. After the failure of attempts to reach a friendly settlement, by a letter dated 31 May 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application in respect of the complaint communicated to them. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of Ukraine acknowledge the excessive duration of the consideration of the applicants’ case before the national courts.
The Government of Ukraine offer to pay EUR 900 (nine hundred euros) to Mr Yuriy Arkadiyevich Makhno and EUR 900 (nine hundred euros) to Mr Vladimir Arkadiyevich Makhno.
The Government therefore invite the Court to strike the application 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.
These sums are to cover any and all non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable, and converted into the national currency of the respondent State at the rate applicable on the date of settlement. It 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 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.
This payment will constitute the final resolution of the case.”
The applicants did not comment on the Government’s declaration.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. 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”.
It also recalls 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.
The Court has established in a number of cases, including those brought against Ukraine, its practice concerning complaints about the violation of the right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Pavlyulynets v. Ukraine, no. 70767/01, §§ 39-52, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, §§ 52-61, 21 December 2006).
The Court notes that the period to be taken into consideration began on 6 July 2004 and ended on 31 August 2010, thus lasting more than six years for three levels of jurisdiction.
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
2. Having carefully examined the remainder of the application in the light of all the material in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by 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
Takes note of the terms of the respondent Government’s declaration in respect of the excessive length of the civil proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application 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 PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy