FIFTH SECTION
DECISION
Application no. 44404/07 by Sergey Vladimirovich ORLOV
and 43 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 applicant’s 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 46 Ukrainian nationals whose names and dates of birth are tabulated below. The Ukrainian Government (“the Government”) were represented by Mrs V. Lutkovska, 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, holding in favour of the applicants, 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 pilot judgment cited above, in May 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 read 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 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 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.
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 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 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 RegistrarPresident
ANNEX
No.
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 or of another authority, date of the decision)
Compensation offered (euro)
44404/07
ORLOV SERGEY VLADIMIROVICH
1958
03/10/2007
22.09.2006, Zaliznychnyy District Court of Simferopol
315
762/08
GUZHOVSKYY VIKTOR MYKOLAYOVYCH
1965
27/11/2007
26.09.2005, Ichnya District Court of Chernigiv Region
825
13353/08
SMYK PAVLO DMYTROVYCH
1961
31/01/2008
20.05.2002, Chervonograd Court
1,440
15827/08
BUZYNSKA NADIYA IGNATIVNA
1929
19/03/2008
04.12.2007, Zhytomyr District Administrative Court
435
19594/08
KAVUN RAYISA IVANIVNA
1926
23/02/2008
28.04.2006 Tokmak court
750
19757/08
ZHYZHKA GRYGORIY IVANOVYCH
1956
15/04/2008
18.08.2005, Kyiv Court of Appeal
390
23210/08
KOLVAKH KONSTANTUN ALEKSEYEVICH
1958
06/05/2008
20.09.2007, Konotop Court
480
23719/08
BATLUK VLADIMIR IVANOVICH
1949
05/05/2008
29.11.2007, Konotop Court
450
25561/08
KOVALENKO VLADIMIR IVANOVICH
1965
20/05/2008
29.11.2007, Konotop Court
450
26066/08
TERNYUK VIKTOR MYKOLAYOVYCH
1966
20/05/2008
27.06.06, Starokonstjantynivskyy District Court of Khmelnytsky Region
690
27800/08
SAYEVSKAYA MARIYA NIKOLAYEVNA
1955
04/06/2008
2.10.2007, Konotop Court
480
30738/08
GUSKOV OLEKSANDR MYKOLAYOVYCH
1959
17/06/2008
31.03.03, Yavorivsky District Court of Lviv Region
1,290
31678/08
DUDAREV VITALIY SERAFIMOVICH
1932
17/06/2008
06.11.2007, Konotop Court
465
31679/08
KRAPIVA ALLA ANDREYEVNA
1925
18/06/2008
22.11.2007, Konotop Court
450
32528/08
ZHURAVLYOVA VARVARA ALFIMOVNA
1918
25/06/2008
21.02.2008, Konotop Court
390
34251/08
TUAYEV IGOR RADIONOVICH
1965
10/01/2009
06.11.2007, Konotop Court
450
34910/08
GORODISKIY IVAN PETROVICH
1968
08/07/2008
06.11.2007, Konotop Court
465
35516/08
ILYENKO REGINA IVANIVNA
1931
05/07/2008
17.09.2007, Konotop Court
480
41846/08
PETROV VLADIMIR PETROVICH
1951
11/08/2008
25.05.04, Kyivskyy District Court of Odessa (as amended by the Odessa Regional Court of Appeal on 18.11.2004)
750
42087/08
NIKULENKO ALEKSANDRA NIKOLAYEVNA
1954
11/08/2008
20.12.2005, Kharkov Regional Court of Appeal
795
42466/08
CHERNOV OLEKSANDR VIKTOROVICH
1964
14/08/02008
18.12.2007, Zhytomyr District Administrative Court
450
43790/08
SOLDATENKO IVAN IVANOVICH
1968
31/08/2008
27.11.2007, Konotop Court
450
44762/08
KOVTUN VYACHESLAV NIKOLAYEVICH
1965
12/09/2008
16.11.2007, Konotop Court
450
46275/08
SAVCHENKO ALEKSANDR ANATOLYEVICH
1962
12/09/2008
12.11.2007, Konotop Court
465
48160/08
SHATOKHA NIKOLAY FEDOROVICH
1940
26/09/2008
27.09.2007, Konotop Court
480
49757/08
ZHDANOV NIKOLAY TIMOFEYEVICH
1947
30/09/2008
05.11.2007, Konotop Court
465
50974/08
SHVETS NIKOLAY VASILYEVICH
1962
08/10/2008
30.10.2007, Konotop Court
465
51113/08
TAPMYANIN ALEKSANDR VITALYEVICH
1947
09/10/2008
06.11.2007, Konotop Court
450
51714/08
KRUPINA VASILIY VASILYEVICH
1962
09/10/2008
20.09.2007, Konotop Court
480
52601/08
KRASNOKUTSKA NINA GAVRYLIVNA
1951
20/10/2008
20.12.2007, Zhytomyr District Administrative Court
435
5412/09
PASTUSHENKO VLADIMIR MIKHAYLOVICH
1952
12/01/2009
20.09.2007, Konotop Court
480
20643/09
BYTKIVSKYY SERGIY VASYLYOVYCH
1969
03/04/02009
12.10.2007, Zhytomyr District Administrative Court
435
30417/09
GUZOVSKYY LYUDVIG FRANTSOVYCH
1928 (the applicant died on 12 October 2010 and his widow, Mrs Valentyna Ivanivna Guzovska, expressed her wish to pursue the application)
20/05/2009
21.02.2008, Zhytomyr District Administrative Court
390
30607/09
TEMCHENKO YURIY STEPANOVYCH
1962
22/05/2009
22.03.2007, Novomoskovsk Court
570
32918/09
ALFEROV GRIGORIY VASILYEVICH
1960
01/06/2009
18.09.2007, Konotop Court
465
33627/09
GUDZ GAVRYLO STEPANOVYCH
1919
10/06/2009
21.01.2008 Zhytomyr District Administrative Court
405
39314/09
ONOPA OLEKSANDR MYKOLAYOVYCH
1960
08/07/2009
10.04.2008, Oleksandriya Court, as amended by the Dnipropetrovsk Administrative Court of Appeal on 04.12.2008.
255
43114/09
NEFEDOVA TAMARA AFONIVNA
1942
05/08/2009
30.10.2007, Zamostyanskyy District Court of Vinnytsya
435
46520/09
BELSKYY VALENTYN VOLODYMYROVYCH
1969
11/08/2009
10.07.2008, Oleksandriya Court
330
46679/09
KOZHYN VALERIY ANDRIYOVYCH
1962
17/08/2009
31.10.2007, Zhytomyr District Administrative Court
450
46994/09
SEMENYUK VASYL YURIYOVYCH
1960
22/08/2009
24.01.2008, Zhytomyr District Administrative Court
420
47244/09
SOLODKYY SERGIY VASYLYOVYCH
1962
17/08/2009
19.05.2008, Oleksandriya Court, as amended by the Dnipropetrovsk Administrative Court of Appeal on 14.04.2009
195
47318/09
SAGURA STANISLAV MYKHAYLOVYCH
1954
19/08/2009
10.04.2008, Oleksandriya Court, as amended by the Dnipropetrovsk Administrative Court of Appeal on 04.12.2008
255
48630/09
MZHACHYKH VOLODYMYR MYKHAYLOVYCH
1954
25/08/2009
13.05.2008, Oleksandriya Court, as amended by the Dnipropetrovsk Administrative Court of Appeal on 13.11.2008
270
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