FIFTH SECTION
DECISION
Application no. 28831/06
Busha Mykolayovych SHARKOZI
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 11 December 2012 as a Committee composed of:
Angelika Nußberger, President,
André Potocki,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 29 May 2006,
Having regard to the declaration submitted by the respondent Government on 9 March 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 Busha Mykolayovych Sharkozi, is a Ukrainian national, who was born in 1956 and lives in Brovary. He was represented before the Court by Mr I. Y. Fomin, a lawyer practising in Kyiv.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice.
In May 2001 criminal proceedings against the applicant were instituted, which are currently pending, according to the information submitted by the applicant.
COMPLAINTS
Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained of the unreasonable length of the proceedings; this complaint was communicated to the Government under Article 6 § 1. The applicant also complained under this provision about the alleged unfairness of the proceedings in question.
THE LAW
1. After the failure of attempts to reach a friendly settlement, by a letter of 9 March 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 the excessive duration of the consideration of the applicant’s case before the national authorities.
I, Valeria Lutkovska, the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay ex gratia EUR 2,200 (two thousand two hundred) to Mr Busha Mykolayovych Sharkozi.
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 sum ex gratia, which is to cover any 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.”
The applicant objected to the terms of the unilateral declaration.
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 the right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Pavlyulynets v. Ukraine, no. 70767/01, §§ 39-52, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, §§ 52-61, 21 December 2006).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, 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).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
2. The applicant also complained under Article 6 § 1 of the Convention that the proceedings were unfair. The Court notes that those proceedings are still pending. Accordingly, this complaint is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the excessive length of the proceedings 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 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