FIFTH SECTION
DECISION
Application no. 35103/07
Nadezhda Karpovna OMELCHUK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 24 September 2013 as a Committee composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 16 July 2007,
Having regard to the declaration submitted by the respondent Government on 26 October 2012 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Ms Nadezhda Karpovna Omelchuk, is a Ukrainian national, who was born in 1936 and lives in Panteleymonivka, Donetsk region.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy.
The applicant mainly complained under Article 6 § 1 of the Convention about the length the domestic proceedings in her case (a land dispute).
The aforementioned part of the application was communicated to the Government.
THE LAW
The applicant complained that the domestic proceedings had been unreasonably lengthy. She relied on Article 6 § 1 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 26 October 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. 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 consideration of the applicant’s case before the national courts.
The Government of Ukraine offer to pay to Ms Nadezhda Karpovna Omelchuk EUR 900 (nine hundred euros).
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.
This sum is to cover any pecuniary and 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 this sum 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.”
A copy of the above unilateral declaration was sent to the applicant for comments. However, as appears from her letter of 28 February 2013, the applicant did not receive it.
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.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Ukraine, its practice concerning complaints about the violation of Article 6 § 1 of the Convention in respect of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑V; Majewski v. Poland, no. 52690/99, 11 October 2005; and Yuryeva and Yuryev v. Ukraine, no. 3431/03, § 54, 31 July 2012).
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).
Relying on Article 6 § 1 of the Convention, the applicant also complained of alleged unfairness of the domestic proceedings in her case.
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 must be rejected as manifestly ill-founded, pursuant to 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 concerning the length of the proceedings under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the part of the application concerning the length of the domestic proceedings out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy