FIFTH SECTION
DECISION
Application no. 14278/07
Yuriy Nikolayevich POLUKHIN
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 7 February 2012 as a Committee composed of:
Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2007,
Having regard to the unilateral declaration submitted by the respondent Government on 28 October 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yuriy Nikolayevich Polukhin, is a Ukrainian national who was born in 1957 and lives in the town of Gorlovka, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska, from the Ministry of Justice of Ukraine.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In November 2005 the applicant instituted proceedings in the Berdyansk Local Court against the Bailiffs’ Service of the Berdyansk Local Department of Justice claiming to have suffered damage caused by the lengthy non-enforcement of the decision of 26 September 2002 adopted in his favour against a private person.
On 15 March 2006 the court terminated the proceedings in the applicant’s case since the Bailiffs’ Service of the Berdyansk Local Department of Justice had been closed down and the newly founded Berdyansk State Bailiffs’ Service was not its legal successor. The applicant appealed stating that the newly created service had received buildings and other property from the closed entity and it was still part of the Ministry of Justice of Ukraine.
On 10 July 2006 the Zaporizhzhya Regional Court of Appeal upheld this decision.
On 21 September 2006 the Supreme Court of Ukraine refused the applicant’s request for leave to appeal in cassation.
The applicant received this decision on 30 October 2006.
The decision of 26 September 2002 apparently remains unenforced.
COMPLAINTS
The applicant complained under Article 6 of the Convention that his right to a fair hearing had been breached since he had not benefited from free legal assistance. He also complained under Article 6 of the Convention and Article 1 of Protocol No. 1 of the non-enforcement of the decision of 26 September 2002. The applicant finally invoked Article 13 of the Convention in respect of his complaint of non-enforcement.
THE LAW
A. The complaint about lack of access to court
The applicant complained of the non-enforcement of the decision of 26 September 2002 and of impossibility to challenge the State’s inactivity in this respect. He relied on Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1.
The Court considers that the debtor in the applicant’s case is a private person. In enforcement proceedings against private persons, the responsibility of the State is limited to the organisation and proper conduct of such enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002). Ukrainian legislation provides for the possibility of challenging the lawfulness of actions and omissions of the State Bailiffs’ Service in enforcement proceedings before the courts and also for claiming damages from that body for any delay in the payment of sums awarded (see, for instance, Dzizin v. Ukraine (dec.), no. 1086/02, 24 June 2003, and Kukta v. Ukraine (dec.), no. 19443/03, 22 November 2005).
In the present case, the applicant was deprived of this possibility under the pretext that the bailiffs’ department had been closed down without a legal successor. The Court thus considers that the applicant’s complaints are to be examined under Article 6 § 1 of the Convention (access to court) (see Chuykina v. Ukraine, no. 28924/04, 13 January 2011), which provides in so far as relevant as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
By letter dated 28 October 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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 that there has been infringement of the applicant’s right of access to court.
The Government Agent before the European Court of Human Rights declare that the Government of Ukraine offer to pay FUR 1,500 (one thousand five hundred euros) to Mr Yuriy Mykolayovych Polukhin.
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 § I (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 tile 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 § I 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.”
In a letter of 6 December 2011 the applicant stated that he had already submitted all relevant arguments in respect of his case.
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 (preliminary objection), [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 notes that it has already established a violation of Article 6 § 1 of the Convention in a similar case of Chuykina v. Ukraine (no. 28924/04, 13 January 2011).
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 this part of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear 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 this part of the application (Article 37 § 1 in fine).
B. Complaint about lack of legal assistance
Having carefully examined the applicant’s complaint under Article 6 § 1 of the Convention that his right to a fair hearing was breached since he did not benefit from free legal assistance 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.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s unilateral declaration in respect of the complaint under Article 6 § 1 of the Convention about the lack of access to court 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 PhillipsMark Villiger
Deputy RegistrarPresident
Full & Egal Universal Law Academy