FIFTH SECTION
DECISION
Application no. 38747/06
by Bogdaniya Nikolayevna ONISHCHUK and 7 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 the dates specified in the table annexed below,
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 on 28 May 2010 requesting the Court to strike the applications out of the list of cases and the applicants' replies to it,
Having regard to the Court’s decision of 30 November 2010 in the cases and the Government’s request to restore the cases to the list in order to effect a number of technical amendments,
Having deliberated, decides as follows:
THE FACTS
The applicants are Ukrainian nationals whose names and dates of birth are set out in the table annexed below. The Ukrainian Government (“the Government”) were represented by Mrs V. Lutkovska, Deputy Minister of Justice of Ukraine.
On the dates set out in the table annexed below the domestic courts held for the applicants and ordered the authorities to take certain measures or 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 v. Ukraine pilot judgment cited above, in a letter dated 28 May 2010, the Government informed the Court of their unilateral declaration, signed on the same date, with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
The declaration provided 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 the annex 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 mentioned in the annex 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.”
A majority of the applicants disagreed with the terms of the Government's declaration on various grounds, considering most often that the compensation amounts offered by the Government were insufficient. Certain others failed to reply.
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.
The Court reiterates 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”.
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 further reiterates that in its pilot judgment (Yuriy Nikolayevich Ivanov v. Ukraine, cited above) it required Ukraine to
“grant adequate and sufficient redress, within one year from the date on which the present judgment [became] final, to all applicants [...] whose complaints about the prolonged non-enforcement of domestic decisions [had] been communicated to the respondent Government.”
In the same judgment the Court also held that
“Proceedings in cases which [had] already been communicated to the Government under Rule 54 § 2 (b) of the Rules of Court, but in which the Court [had] not yet decided on the merits, [would] be adjourned for [one year from the date on which this judgment became final].
...
The decision to adjourn the above cases [would] be taken without prejudice to the Court's power at any moment to declare inadmissible any such case 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 (ibid., § 99 and point 6 of the operative part).
The Court is satisfied that the lengthy non-enforcement of the judgments in the applicants' favour is explicitly acknowledged by the Government. It also notes that the compensations offered are comparable with its 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 this part 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 this part of the applications.
Accordingly, this part of the applications 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 this part of the applications is 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 restore the cases to its list of cases;
Decides to join the applications;
Takes note of the terms of the respondent Government’s declaration in respect of the lengthy non-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 they relate to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the applications inadmissible.
Stephen PhillipsRait Maruste
Deputy RegistrarPresident
ANNEX
#
Appl.
Number
Name(s) of the applicant(s), born in
Date of introduction
Domestic decisions about the lengthy non-enforcement of which the applicants complain (name of the court, date of the decision)
Compensation offered (euro)
38747/06
ONISHCHUK BOGDANIYA NIKOLAYEVNA (1960)
5 September 2006
6 December 2005, Brody District Court
810
13627/07
PUZANOV VOLODYMYR VOLODYMYROVYCH (1966)
5 March 2007
15 September 2004, Tokmak District Court
976
18720/07
SHLYAKHOVA INNA OLEGIVNA (1977)
3 April 2007
23 April 2003, Berdychiv Town Court
630
21117/07
SHCHETYNIN VOLODYMYR OLEKSANDROVYCH (1939)
8 May 2007
22 June 2005, Zhovtneviy District Court of Kryviy Rig
870
39219/07
KOSTYNYAN ILLYA GEORGIYOVYCH (1965)
31 August 2007
7 December 2004, Kolomyya District Court
975
25636/08
VASILESHNIKOVA VALENTINA NIKOLAYEVNA (1952)
16 May 2008
12 July 2007, Sverdlovsk Town Court (as amended on 19 November 2007)
195
31812/08
KUZUBOVA YEKATERINA IVANOVNA (1933)
19 June 2008
9 November 2007, Konotop District Court
26 November 2007, Konotop District Court
450
43788/08
LYSENKO MIKHAIL NIKOLAYEVICH (1963)
23 August 2008
5 November 2007, Konotop District Court
450
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