Lexploria

FIFTH SECTION

DECISION

This version was rectified on 27 August 2012 under Rule 81 of the Rules of Court

Application no . 38083/04 Norbert Iliych SMIRNOV against Ukraine and 33 other applications (see list appended)

The European Court of Human Rights (Fifth Section), sitting on 5 June 2012 as a committee composed of:

Mark Villiger , President, Karel Jungwiert , André Potocki , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above applications lodged on the dates specified in the annexed table ,

Having deliberated, decides as follows:

THE FACTS

The applicants are Ukrainian nationals whose names and dates of birth are specified in the annexed table. The Ukrainian Government (“the G overnment”) were represented by Ms V. Lutkovska , of the Ministry of Justice.

On the dates set out in the table below t he domestic courts and a commission on labour disputes (applications nos. 26441/09, 26442/09 and 26443/09) ordered the authorities to pay t he applicants various pecuniary amounts or to take certain actions in their favour. The decisions in the applicants ’ favour became final , but remain unenforced .

COMPLAINTS

Relying on various provisions of the Convention , the applicants complained about the delayed non-enforcement of the decisions given in their favour. Some of the applicants also raised other complaints under the Convention.

THE LAW

1. The Court considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

2. R eferring to the Yuriy Nikolayevich Ivanov pilot judgment ( Yuriy Nikolayevich Ivanov v. Ukraine , no. 40450/04 , ECHR 2009 ‑ ... (extracts)) , the Gover nment submitted to the Court several unilateral declaration s aimed at resolving the non-enforcement is sues raised in the applications. By the above declarations , the Government acknowledge d the excessive duration of the enforcement of the decisions in the applicants ’ f avour and declared that they were ready to enforce the domestic decisions which were still subject to execution, as well as to pay the applicants the sum s specified in the annexed table . In some declarations the Government referred to the ex gratia principle of such payment. The Government invited the Court to strike the applications out of the list of cases pursuant to Article 37 § 1 (c) of the Convention.

The Government also declared that the compensation sums were to cover any pecuniary and non-pecuniary damage as well as costs and expenses, that they would be converted into the national currency of the respondent State at the rate applicable on the date of settlement and would be free of any taxes that might be applicable. The sums would be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay these s ums within the said three-month period , the Government undertook to pay simple interest on them , from the 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. The declarations provided that the payment would constitute the final resolution of the cases.

The applicants either disagreed with the declarations on various grounds and requested the Court to pursue the examination of their cases or did not provide any comments.

The Court reiterates that 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 Article 37 § 1 (a) - (c) of th e Convention . In particular, under A rticle 37 § 1 (c) the Court may s trike 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 th e 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 made by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary issue ) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

The Court recalls that in its pilot judgment on the issues of non ‑ enforcement it ordered Ukraine to grant redress to the applicants whose applications were communicated to the Government before the delivery of the judgment or would be communicated further to the judgment and concerned complaints about the prolonged non-enforcement of domestic decisions for which the State was responsible (see Yuriy Nikolayevich Ivanov , cited above , § 99 and point 6 of the operative part ). Having examined the terms of the Government ’ s declaration s , the Court understands them as intending to give the applicant s the redress in accordance with the pilot judgment .

The Court is satisfied that the Government explicitly acknowledged the excessive duration of the enforcement of the decisions given in the applicants ’ favour and undertook to pay the outstanding debts , in spite of the fact that in some declarations the Government refer red to ex gratia principle of such payment. It als o notes that the compensation sums offered by the Government are comparable with the amounts awarded in similar cases , taking into account , inter alia , specific delay in each particular case .

The Court therefore considers that it is no longer justified to continue the examination of the applicants ’ complaints about the lengthy non ‑ enforcement of domestic decisions . It is also satisfied that respect for human rights as defined in the Convention and the P rotocols thereto does not require it to continue the examination of the se complaints . Accordingly , the applications s hould be struck out of the list in so far as they concern the lengthy non-enforcement of domestic decisions.

3. Having carefully examined the applicants ’ remaining complaints in the light of all the material in its possession , 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 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 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Takes note of the terms of the respondent Government ’ s declaration s in respect of the applicants ’ complaints about the lengthy non-enforcement of the domestic decisions given in their favour ;

Decides to strike the applications out of its list of cases in so far as they relate to the above complaints in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the applications inadmissible.

Stephen Phillips Mark Villiger Deputy Registrar President

APPENDIX

No.

Application number

Applicant ’ s name, year of birth

Date of introduction

Domestic decisions about the lengthy non-enforcement of which the applicants complain

( the authority and date of the decision)

Date of the Government ’ s unilateral declaration

Compensation offered by the Government (euro)

38083/04

Norbert Iliych SMIRNOV, 1946

3 September 2004

Chervonozavodskyy District Court of Kharkiv, 16 January 2002

9 December 2010

570

17782/06

Oleg Ivanovych SHAPOVALENKO, 195 3

18 April 2006

Golosiyvskyy District Court of Kyiv,

6 October 2003

7 November 2011

1,440

10521/07

Lyudmila Anatolyevna KOVALEVA , 1962

6 February 2007

Zolochiv Court , 17 November 2005

(as amended by the Kharkiv Regional Court of Appeal on 16 February 2006)

31 May 2011

765

18692/07

Yuriy Yevgenovych BOROVYY, 1968

13 March 2007

Brusylivka Court , 19 March 2001

7 November 2011

1,875

30958/07

Sergey Borisovich OSTAPENKO, 1967

31 May 2007

Gagarinskyy District Court of Sevastopol,

4 December 2006

11 November 2011

855

32885/07

Mariya Antonivna SHCHERBYNA, 1946

27 June 2007

Krukivskyy District Court of Kremenchuk,

29 October 2002

(as amended by the Poltava Regional Court of Appeal on 24 February 2004 and by Supreme Court of Ukraine on 21 March 2007)

13 September 2010

600

41700/07

Yevgeniy Petrovich FROLOV, 1972

14 August 2007

Gorli vka Court , 17 December 2003

7 November 2011

1,410

6296/08

Vladimir Vladimirovich CHUPLYY, 1954

19 January 2008

Saksaganskyy District Court of Kryvyy Rig, 25 May 1999

30 July 2010

2,040

7559/08

Sergey Alekseyevich BORODIN, 1960

12 December 2007

Makiyi vka Court , 27 April 2007

12 January 2012

420

14603/08

Vera Sergeyevna LIZOGUBENKO, 1954

3 March 2008

Krasnyy Luch Court , 12 May 2005

9 December 2010

960

14631/08

Vladimir Arsenyevich ISHCHENKO (II) , 1949

22 January 2008

Krasnyy Luch Court , 28 April 2006

9 December 2010

795

34880/08

Nikolay Ivanovich SHCHERBINA, 1950

1 July 2008

Oleksandriya Court , 21 December 2006

7 November 2011

645

50808/08

Gennadiy Sergeyevich LEBEDENKO, 1956

23 September 2008

Krasnyy Luch Court , 6 June 2005

9 December 2010

945

26353/09

Irina Mikhaylovna [1] YEROKHINA, 1963

4 March 2009

Slovyansk Court ,

13 and 24 September 1999 and

22 February 2002

9 December 2011

2,190

26441/09

Aleksandr Nikolayevich SOB, 1960

4 March 2009

Labour disputes commission,

18 October 2001

9 December 2011

1,815

26442/09

Lyubov Nikolayevna SOB, 1939

4 March 2009

Labour disputes commission,

9 November 2001

9 December 2011

1,815

26443/09

Natalya Vladimirovna SOB, 1961

4 March 2009

Labour disputes commission,

18 October 2001

9 December 2011

1,815

26447/09

Vladimir Afanasyevich SOTSKOY, 1927

4 March 2009

Slovyansk Court , 30 October 1997

9 December 2011

2,535

37734/09

ISAR-VK

25 June 2009

Crimea Commercial Court ,

18 October 2001

9 December 2010

465

39680/09

Yuriy Vitaliyovych NOVIKOV, 1965

11 July 2009

Dokuchayi vsk Court ,

26 December 2007 and 19 September 2008

9 December 2011

675

58974/09

Leonid Fedorovich BOBRYSHOV, 1948

24 October 2009

Donetsk District Administrative Court ,

27 November2007

(as amended by the Donetsk Administrative Court of Appeal on 14 March 2008 )

11 November 2011

525

5398/10

Georgiy Dmytrovych UCHAYEV, 1925

18 January 2010

Khmelnytsk Court , 5 November 2007

11 November 2011

600

5530/10

Nadezhda Maksimovna VLADIMIRSKAYA, 1 960

22 December 2009

Bryanka Court , 17 April 2003 and

26 December 2006

8 December 2011

1,470

6046/10

Oleg Sergiyovych PANASYUK, 1981

22 January 2010

Dubno Court , 12 January 2007

11 November 2011

855

42086/10

Mykhaylo Maksymovych FEDYAYEV, 1923

29 June 2010

Khmelnytsk Regional Administrative Court, 18 September 2008

21 October 2011

555

46375/10

Iryna Volodymyrivna SARNAVSKA, 1964

3 August 2010

Gadyach Court ,

10 July 2008

(as amended by the Poltava Regional Court of Appeal on 21 October 2008 )

12 October 2011

540

51129/10

Anatoliy Mykolayovych ZHURKIN , 1960

27 August 2010

Shevchen kivskyy District Court of Zapori zhzhya, 1 June 2006

12 October 2011

945

51835/10

Vasiliy Mikhaylovich GABOV, 1961

17 August 2010

Krasnoarmiysk Court , 23 October 2008

12 October 2011

450

52700/10

Volodymyr Mykolayovych SVYATSKYY, 1951

4 September 2010

Kharkiv Regional Court of Appeal,

10 March 2009

30 September 2011

450

64811/10

Leonid Oleksiyovych ZHOLUD, 1948

21 September 2010

Oleksandriya Court , 15 May 2008

30 September 2011

510

66223/10

Yevgeniy Georgiyovych NAYDYONOV, 1952

3 November 2010

Brovary Court , 10 April 2009

Kyiv Administrative Court of Appeal,

9 June 2009

12 October 2011

420

68197/10

Olena Leonidivna KOVALYOVA, 1960

5 November 2010

Svitlovodsk Court ,

7 December 2000 and 12 January 2009

2 February 2012

1,995

71740/10

Anatoliy Sergiyovych PANCHENKO, 1950

26 November 2010

Melitopo l Court , 19 July 2006

12 October 2011

960

34

4348/11

1) Mykola Mykolayovych OKHRIMENKO, 1959

2) Oleksandr Mykolayovych OKHRIMENKO, 1986

3) Anna Vitaliyivna KRYVENKO, 1984

11 August 2010

Brovary Court ,

1) 17 December 2007,

2) 3 December 2007,

3) 19 November 2007

12 October 2011

1) 675

2) 690

3) 690

[1] . Rectified on 27 August 2012 : the p atronymic was “ Nikolayevna”.

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SMIRNOV v. UKRAINE AND OTHER APPLICATIONS

SMIRNOV v. UKRAINE AND OTHER APPLICATIONS

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