Lexploria

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 application s 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 applicant s 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 t he national courts , holding in favour of the a pplicants , 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 applicant s 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 applicant s 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 application s . 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 these parts of the application s .

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 Phillips Rait Maruste Deputy Registrar President

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

GUZ H OVSKYY 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

0 6.11.2007, 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

0 6.11.2007, 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

0 5.11.2007, 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

472 44 /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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ORLOV v. UKRAINE

ORLOV v. UKRAINE

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