FIFTH SECTION
DECISION
Application no. 46014/07
by Yevgeniya Vladimirovna ROKHLYA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 17 May 2011 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar.
Having regard to the above application lodged on 9 October 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Yevgeniya Vladimirovna Rokhlya, is a Ukrainian national who was born in 1938 and lives in Ichnya. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska.
The applicant is the widow of a military officer. Before the death of her husband in 2001, their family had been living in an apartment allocated to them by the Ministry of Defence in a closed military compound in the Chernigiv region.
On 13 November 2001 the Ministry of Defence Housing Commission decided to rehouse the applicant in smaller accommodation in Lviv, which was done at some point in 2002.
Following an intervention on the part of the Military Prosecutor of the Lviv Garrison, on 21 June 2006 the Sykhivskyy District Court of Lviv found the rehousing procedure to have been violated by the military authorities and ordered the applicant’s eviction from her flat in Lviv. At the same time, the court noted that the applicant, through no fault of her own, had no place to live and that she was entitled to other accommodation, to be provided by the military authorities in compliance with law. On 27 November 2006 and 10 May 2007 the Lviv Regional Court of Appeal and the Supreme Court respectively upheld that judgment.
In the meantime, on 16 March 2007 the applicant was evicted from the flat in Lviv. According to her, since then she has been living in appalling conditions in her old and dilapidated house in Ichnya, which she cannot afford to renovate.
THE LAW
The applicant complained, in particular, about her rehousing from the military compound apartment to other accommodation, as a result of a flawed procedure which ultimately made her homeless. She relied on Article 8 of the Convention and Article 1 of Protocol No. 1 which, in so far as relevant, provide as follows:
Article 8: Right to respect for private and family life.
“1. Everyone has the right to respect for his ... home ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1: Protection of property.
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
On 16 December 2010 the President of the Fifth Section decided to give notice of the application, insofar as it concerned the above complaints, to the Government of Ukraine. It was also decided to give priority to the application under Rule 41 of the Rules of Court.
By letter dated 14 February 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 acknowledges the violation of the applicant’s right to respect for her home and the right to the peaceful enjoyment of her possessions.
I, Valeria Lutkovska, Government Agent, declare that the Government of Ukraine offer to pay ex gratia EUR 20,000 (twenty thousand) as compensation for pecuniary damage and EUR 2,000 (two thousand) as compensation for non-pecuniary damage and costs and expenses.
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.
The sums ex gratia are to cover any pecuniary and non-pecuniary damage as well as costs and expenses and will be free of any taxes that may he applicable, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement. 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.”
In a letter of 22 March 2011 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. She further submitted some additional factual details and arguments in support of her application and invited the Court to examine it on the merits.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. However, as it has stated in earlier cases (see, in particular, Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 74, ECHR 2003-VI), a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly settlement proceedings (Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court) and, on the other hand, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court. In accordance with Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, the Court will proceed on the basis of the Government’s unilateral declaration submitted outside the framework of friendly-settlement negotiations, and will disregard the parties’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Estate of Nitschke v. Sweden, no. 6301/05, § 36, 27 September 2007).
The Court notes 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”.
The Court 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. This will, however, depend on whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine; see also Tahsin Acar, cited above, § 75, Seleckis v. Latvia, no. 41486/04, § 21, 2 March 2010, and the case-law cited therein).
Relevant factors in this regard include, but are not confined to, the nature of the complaints made and the Court’s case-law on comparable issues, as well as the consistency of the parties’ accounts of the facts of the case. It also matters whether in their unilateral declaration the respondent Government have made any admissions in relation to the alleged violations of the Convention and, if so, the scope of such admissions and the manner in which they intend to provide redress to the applicant. As to the last-mentioned point, in cases in which it is possible to eliminate the effects of an alleged violation (as, for example, in certain categories of property cases) and the respondent Government declare their readiness to do so, the intended redress is more likely to be regarded as appropriate for the purposes of striking out the application, the Court, as always, retaining its power to restore the application to its list as provided in Article 37 § 2 of the Convention and Rule 44 § 5 of the Rules of Court (see Melnic v. Moldova, no. 6923/03, §§ 24 and 25, 14 November 2006).
Turning to the present case, the Court observes at the outset that the principle facts of the case are not in dispute between the parties.
It further notes that the Government’s unilateral declaration covered in full the applicant’s complaints communicated to them, by having acknowledged, in a clear and unambiguous manner, the violations of the applicant’s rights under both Article 8 of the Convention and Article 1 of Protocol No. 1.
The Court attaches weight to this acknowledgement even though it contradicts, stricto sensu, the Government’s offer of the compensation to be paid ex gratia to the applicant (implying without recognising any liability or, indeed, any legal obligation – this contradictory wording having often been criticised by the Court in its case-law (see, for example, Bazjaks v. Latvia, no. 71572/01, § 52, 19 October 2010)).
Although the Court has not examined comparable cases against Ukraine before, it notes that the aforementioned violations of the applicant’s rights did not stem from any larger-scale issues (such as, for example, legislative lacunae or deficient administrative practice) calling for the application of general measures in order to avoid similar infringements in the future.
The Court notes that in admitting that there has been a violation of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, the Government have proposed compensation for both pecuniary and non-pecuniary damage and costs and expenses, in the amount of EUR 22,000 in total. This sum appears sufficient for the applicant to purchase decent accommodation in the town of her residence or in another comparable town in Ukraine.
The Court therefore considers that the reparation proposed by the Government would “put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach” (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000‑XI).
Against this background, the Court considers that it is no longer justified in continuing the examination of this part of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, 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).
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Claudia WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy