FIFTH SECTION

CASE OF YAVOROVENKO AND OTHERS v. UKRAINE

(Application no. 25663/02 and 30 others – see list appended )

JUDGMENT

This version was rectified on 2 March 2015

under Rule 81 of the Rules of Court.

STRASBOURG

17 July 2014

This judgment is final . It may be subject to editorial revision.

In the case of Yavorovenko and others v. Ukraine ,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Boštjan M. Zupančič , President, Ann Power-Forde , Helena Jäderblom , judges, and Stephen Phillips, Deputy Section Registrar ,

Having deliberated in private on 24 June 2014 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in 31 applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian and Russian (application no. 54769/08 ) nationals as well as companies based in Ukraine, Cyprus (application no. 23581/03) and Romania (application no. 22422/05). The details of the applicants are specified in the appended table (“the applicants”).

2 . In application no. 34384/05 the applicant died in course of the proceedings before the Court. The next of kin of the applicant expressed the wish to maintain the application of their deceased family member.

3 . In application no. 54769/08 one of the applicants, Ms Klavdiya Nikolayevna Galayda , died in course of the proceedings before the Court. No one expressed the wish to maintain her application.

4 . In application no. 26330/09 a court decision was delivered in favour of the applicant ’ s deceased father in law. The applicant, providing documents in support, claims to be his lawful successor in title.

5 . In application no. 30843/08 the court decisions were delivered in favour of the legal entity which was later liquidated. The applicant company, providing documents in support, claims to be its lawful successor in title.

6 . On 10 April 2012 the Court, having accepted the unilateral declarations of the Government in applications nos. 23056/07 and 24245/10, decided to strike these applications out of its list of cases.

7 . On various dates following the decision to strike out the applications nos. 23056/07 and 24245/10, the applicants informed the Court that Government had paid the compensation amount, but had failed to enforce the judgments of the domestic courts. In particular, in application no. 23056/07 the applicant complains of non-enforcement of the judgment of the Shevchenkivskyy District Court of Kyiv dated 4 February 2005 and in application no. 24245/10 the applicant complains of non-enforcement of the judgment of the Oleksandriya Court dated 22 October 2010.

8 . The applicants requested, therefore, to restore their applications in the Court ’ s list of cases.

9 . The applicants ’ letters were sent to the respondent Government for comments. In their replies the Government confirmed that the relevant judgments of the domestic courts remained unenforced. According to information provided by the Government in their letter dated 19 September 2013 and in view of the judgment of the Shevchenkivskyy District Court of Kyiv adopted on 9 July 2013 and annexed to that letter, the enforcement proceedings which were the subject matter of application no. 23056/07 were terminated on 17 April 2013 (decision fully enforced). [1]

10 . On 28 May 2013 (in application no. 23056/07) and on 17 December 2013 (in application no. 24245/10) the Court decided to grant the requests of the applicants and to restore the applications to the Court ’ s list of cases in accordance with Rule 43 § 5 of the Rules of Court.

11 . The applications listed in the Appendix to the present judgment were communicated to the Government on various dates.

12 . The Government were represented by their Agent.

13 . The Cypriot and Romanian Governments, having been informed of their right to intervene in the proceedings in respect of the applicants in applications nos. 23581/03 (lodged by a legal entity registered in Cyprus) and 22422/05 (lodged by a legal entity registered in Romania), indicated that they did not wish to exercise that right.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

14 . On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.

15 . Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.

THE LAW

I. JOINDER OF THE APPLICATIONS

16 . In view of the similarity of the applications set out in the Appendix in terms of the principal legal issues raised, the Court finds it appropriate to join them.

II. AS TO THE LOCUS STANDI OF THE APPLICANTS IN APPLICAT IONS Nos. 26330/09 AND 34384/05

17 . The Court notes that applications nos. 26330/09 and 34384/05 concern a property right which is in principle transferable to the heirs. In these circumstances the Court considers that the applicants or their next of kin have standing to continue the present proceedings in their stead (see, among other authorities, Mironov v. Ukraine , no. 19916/04, § 12, 14 December 2006).

III. AS TO THE LOCUS STANDI OF THE APPLICANT IN APPLICATION No. 30843/08.

18 . The Court notes that application no. 30843/08 concerns a property right which is in principle transferable to the successors. In these circumstances the Court considers that the applicant company – being a lawful successor of the liquidated creditor company - has standing to initiate the present proceedings instead of it (see, among other authorities, Mironov v. Ukraine , no. 19916/04, § 12, 14 December 2006).

IV. AS TO THE LOCUS STANDI OF Mr VADYM YEVGENOVYCH MYKHAYLENKO (THE SECOND APPLICANT IN APPLICATION No. 18330/05)

20 . In their observations the Government, inter alia , informed the Court that Mr Mykhaylenko (second applicant) was not a party in the domestic Court proceedings and he could not, therefore, claim to be a victim of the alleged violations of the Convention.

V. STRIKE OUT OF THE APPLICATION LODGED BY Ms KLAVDIYA MYKOLAYIVNA GALAYDA (ONE OF THE APPLICA NTS IN APPLICATION No. 54769/08)

22 . By letter dated 12 July 2011 the Court was informed that Ms Klavdiya Mykolayivna Galayda , one of the applicants in application no. 54769/08, had died after lodging the application before this Court. No person expressed the wish to support her application.

23 . In view of the above the Court decides to strike out from its list of cases the application lodged by Ms Klavdiya Mykolayivna Galayda , since the applicant died and there are no persons wishing to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, there are no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the complaints.

VI. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

24 . The applicants listed in the Appendix complained about the lengthy non-enforcement of the decisions given in their favour, as specified in the Appendix, and about the lack of the effective domestic remedies in respect of those complaints. Expressly or in substance they relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

25 . The Court notes that the above complaints (with the exception of the complaints raised by Ms Klavdiya Mykolayivna Galayda , one of the applicants in application no. 54769/08 and by Mr Mykhaylenko , second applicant in application no. 18330/05, see paragraphs 17-19 above) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

26 . The Court finds that the decisions in the applicants ’ favour were not enforced in due time, for which the State authorities were responsible.

27 . Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov v. Ukraine , no. 40450/04 , §§ 56-58 and 66-70 , 15 October 2009) the Court finds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the prolonged non-enforcement of the decisions in the applicants ’ favour. It also considers that there has been a violation of Article 13 of the Convention in that the applicants did not have an effective domestic remedy to redress the damage created by such non-enforcement.

VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

28 . Some of the applicants raised other complaints under the Convention, which the Court has examined carefully. 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.

29 . It follows that those complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

31 . The Court notes that application nos. 23056/07 and 24245/10 were initially struck out of the Court ’ s list of cases by two separate decisions on 10 April 2012 in the light of unilateral declarations in which the Government, as well as acknowledging a violation of the Convention and offering to pay 1,020 euros (EUR) in a pplication no. 23056 /07 and 540 euros (EUR) in application no. 24245/10, “expressed their readiness to enforce the judgments which [had] not been enfo rced yet” (application no. 23056 /07) and “declared that they were ready to pay to the applicants the outstanding judgment debts” (application no. 24245/10). Those cases were restored to the Court ’ s list of cases at the applicants ’ request as the underlying judgment debts were not paid, although the compensation payments had been duly effected. The Government accepted that the judgment had not been enforced in application no. 23056 /07, and referred to “technical errors” which had taken place in application no. 24245/10. They did not contend that the judgment debts did not fall to be enforced, for example because they had been enforced in the interim. In these circumstances, the Court considers that the “failed” unilateral declaration process should not be taken into consideration in determining any Article 41 award which should be made in these two applications, and will deal with them in the same manner as the remaining applications in the present case, that is, without deduction of the amounts already paid.

32. The Court considers it reasonable and equitable (see Kononova and Others v. Ukraine [Committee], no. 11770/03 and 89 other applications, § 24, 6 June 2013; Tsibulko and Others v. Ukraine [Committee], no. 65656/11 and 249 other applications, § 19, 20 June 2013; Pysarskyy and Others v. Ukraine [Committee], no. 20397/07 and 164 other applications, § 24, 20 June 2013) to award 2,000 euros (EUR) to each of the applicants (except Ms Klavdiya Mykolayivna Galayda , one of the applicants in application no. 54769/08; in application no. 18330/05 only to the first applicant, Galon , TOV ). This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

32 . The Court further notes that the respondent State has an outstanding obligation to enforce the decisions which remain enforceable.

33 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to join the applications set out in the Appendix;

2. Declares the complaints of the applicants listed in the Appendix (in application no. 18330/05 only with regard to the first applicant, Galon , TOV ) under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints admissible and the remainder of their applications inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1;

4. Holds that there has been a violation of Article 13 of the Convention;

5. Holds

(a) that within three months the respondent State is to enforce the domestic decisions in the applicants ’ favour which remain enforceable, and is to pay EUR 2,000 (two thousand euros) to each applicant (or his or her estate) listed in the Appendix (except Ms Klavdiya Mykolayivna Galayda , one of the applicants in application no. 54769/08; in application no. 18330/05 only to the first applicant, Galon , TOV ) in respect of pecuniary and non-pecuniary damage, and costs and expenses, plus any tax that may be chargeable to the applicants on the above amounts, which are to be converted into the national currency at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default peri od plus three percentage points;

6. Decides to strike application no. 54769/08 in part lodged by Ms Klavdiya Mykolayivna Galayda out of its list of cases.

Done in English, and notified in writing on 17 July 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President

APPENDIX

No.

Application no. and date of introduction

Applicant name

date of birth

place of residence

Relevant domestic decision

25663/02

21/06/2002

Mykola Mykhaylovych YAVOROVENKO

05/01/1949

Vinnytsya

1) Zamostyanskyy District Court of Vinnytsya, 01/03/2004

2) Leninskyy District Court of Vinnytsya, 28/03/2006

3) Zamostyanskyy District Court of Vinnytsya, 16/10/2006

4) Zamostyanskyy District Court of Vinnytsya, 06/04/2007

5) Leninskyy District Court of Vinnytsya, 27/11/2006

23581/03

16/06/2003

LINDSELL ENTERPRISES LIMITED

1) Odesa Regional Commercial Court, 14/12/2000 as rectified by the Odesa Regional Commercial Court on 23/04/2001

2) Odesa Regional Commercial Court, 17/12/2001 as amended by the Odesa Commercial Court of Appeal on 20/01/2003, on 11/02/2004 and on 12/05/2004

4097/04

17/12/2003

GRIG

Simferopol

Crimea Commercial Court, 17-21/04/2003

17556/04

05/04/2004

Vadym Volodymyrovych VASKO

03/05/1972

Kyiv

Pecherskyy District Court of Kyiv, 04/12/2000 in the light of the judgment of the Golosiyivskyy District Court of Kyiv, 13/10/2003

27218/04

21/04/2004

AKVATON, TOV

Rivne

Cherkasy Regional Commercial Court, 18/03/2003

10000/05

25/02/2005

Raisa Vladimirovna TKACHOVA

24/05/1951

Chornomorsk

Yelena Vasilyevna PETLYAK

08/07/1966

Chornomorsk

Valentina Nikolayevna IYEVLEVA

29/06/1960

Chornomorsk

Tatyana Anatolyevna VETROVA

10/01/1962

Chornomorsk

Yelena Alekseyevna KLIMENKO

02/10/1964

Chornomorsk

1) Chornomorskyy District Court of Crimea, 13/11/2002 as amended by the Court of Appeal of Crimea, 31/03/2003

2) Chornomorskyy District Court of Crimea, 21/04/2006

3) Chornomorskyy District Court of Crimea, 26/12/2007

18330/05

13/05/2005

GALON, TOV

Kyiv

Vadym Yevgenovych MYKHAYLENKO [3]

21/03/1964

Kyiv

Higher Arbitration Court, 26/12/2000 in the light of the ruling of the Kyiv City Commercial Court of 27/06/2003

21463/05

30/04/2005

Mykola Prokopovych KOROL

05/06/1943

Polilnya

Zhytomyr Regional Court of Appeal, 31/01/2005

21954/05

27/05/2005

ZODIAK, ZAT

Sumy

1) Donetsk Regional Commercial Court, 19/12/2000 as amended by the Donetsk Regional Commercial Court on 17/04/2001

2) Enforcement writ of Sumy private notary Olga Areshyna , 26/04/2001

3) Order no. 4251 - 12/270 of the Sumy Regional Commercial Court, 26/05/2003

4) Order no. 9/254 of the Sumy Regional Commercial Court, 18/09/2003

22422/05

10/06/2005

INDUSTRIALEXPORT S.A.

Kyiv

International Commercial Arbitration Court at the Ukrainian Chamber of Commerce, 20/02/1997 in light of the judgment of the

Kyiv C i ty Commercial Court dated 29/08/2007

30706/05

04/08/2005

Lenina Abramivna MAREKHBEYN

04/11/1944

Lviv

Frankivskyy District Court of Lviv, 10/07/2003

34384/05

10/09/2005

Yevgeniy Petrovich ORLOV

26/01/1937

Dneprodzerzhynsk

Bagliyskyy District Court of Dniprodzerzhynsk, 26/01/2004

41082/05

02/11/2005

Oleg Mykolayovych GRISHYN

28/06/1952

Cherkasy

Cherkasy Regional Court of Arbitration, 20/05/1998

3093/06

21/12/2005

Irina Vladislavovna MARKOVA

03/01/1962

Simferopol

Yelena Petrovna MONASHOVA

08/10/1940

Simferopol

Viktor Ivanovich SHYBAYEV

21/09/1950

Simferopol

Crimea Court of Appeal, 28/10/2003

16021/06

11/04/2006

Borys Oleksandrovych YELETSKYY

25/08/1949

Kyiv

Kyiv City Commercial Court, 21/02/2005, as amended by the Kyiv Commercial Court of Appeal on 31/05/2005 and by the Higher Commercial Court on 13/10/2005

25186/06

19/05/2006

Petr Mikhaylovich KORZHIKOV

12/07/1947

Chernigiv

Desnyanskyy District Court of Chernigiv, 28/04/2001

29072/06

05/07/2006

Sergey Nikolayevich SIDORENKO

06/03/1961

Chyguyev

Chuguyev Court 13/12/2002

23056/07

23/04/2007

Maria Leonidovna SEREDA

10/02/1935

Kyiv

Shevchenkivskyy District Court of Kyiv, 04/02/2005

49871/07

08/11/2007

Nikolay Aleksandrovich YAMPOLSKIY

01/02/1962

Georgiyivka

Leninskyy District Court of Lugansk, 05/06/2006

54469/07

03/12/2007

Viktor Alekseyevich RASPOPOV

20/10/1935

Kyiv

1) Pecherskyy District Court of Kyiv, 17/04/2006

2) Pecherskyy District Court of Kyiv, 05/03/2007

3) Pecherskyy District Court of Kyiv, 12/02/2007

2316/08

04/01/2008

Vasyl Mykolayovych MUZYCHENKO

06/05/1956

Kyiv

Minskyy District Court of Kyiv, 19/11/1998

10908/08

20/02/2008

Petro Oleksiyovych DZYUBKO

01/09/1947

Kyiv

Vyshgorodskyy District Court of the Kyiv Region, 01/10/2002, upheld by the Supreme Court on 22/01/2004

19939/08

28/03/2008

ANIS, FERMERSKE GOSPODARSTVO

Petrovske

Dnipropetrovsk Commercial Court of Appeal, 16/11/2001

30843/08

20/03/2008

UKRENERGOSTROY, TOV

Dnipropetrovsk

1) Zaporizhzhya Regional Commercial Court, 05/02/2002

2) Zaporizhzhya Regional Commercial Court, 12/02/2002

35948/08

21/07/2008

Mariya Oleksiyivna DOBROVOLSKA

18/08/1954

Kyiv

Mykola Tarasovych DOBROVOLSKYY

27/11/1949

Kyiv

Applicant 1:

1) Kyiv Commercial Court of Appeal, 29/01/2003

2) Kyiv City Commercial Court, 13/07/2006

Applicant 1 and Applicant 2:

2) Podilskyy District Court of Kyiv, 26/06/2008

54769/08

31/10/2008

Engels Ivanovy ch NOVOKHATKO

15/08/1925

Lugansk

Sergi y Oleksiyovych KALININ

26/07/1956

Klimovsk

Mykhaylo Oleksandrovych TARASOV

19/08/1956

Kovrov

Volodymyr Mykolayevych SYURYAYEV

09/12/1945

Orenburg

Yuriy Petrovy ch GALAYDA

19/06/1974

Lugansk

Klavdiya Mykolayivna GALAYDA [4]

22/05/1945

Lugansk

1) Leninskyy District Court of Lugansk, 18/08/2004,

2) Leninskyy District Court of Lugansk, 28/04/2007

23057/09

07/04/2009

Galyna Mykolayivna DONETS

05/10/1963

Lviv

Lviv Circuit Administrative Court, 30/12/2008

26330/09

04/03/2009

Dmitriy Vladimirovich VOLNA

03/05/1973

Myk o layivka

Slovyansk Court, 31/01/2000

55864/09

09/10/2009

NAIRI , IPP

Protopopivka

Kirovograd Regional Commercial Court, 14/05/2004

16112/10

01/03/2010

Nikolay Aleksandrovich KOCHEGAROV

26/02/1951

Novogrodovka

1) Novogorodivka Court, 10/02/1999

2) Novogorodivka Court, 24/03/1999

3) Novogorodivka Court, 05/05/1999

4) Novogorodivka Court, 22/03/2000

5) Novogorodivka Court, 25/01/2001

24245/10

20/04/2010

Volodymyr Ivanovych KRAVCHENKO

01/02/1949

Marto-Ivanivka

Court order of the Oleksandriya Court, 22/10/2008

[1] . Rectified on 2 March 2015 : the third sentence has been added.

[2] . equivalent of about EUR 70,000 as to February 2014

[3] . The complaints of the second applicant, Mr Vadym Yevgenovych Mykhaylenko , are inadmissible ratione personae .

[4] . The application of Klavdiya Mykolayivna Galayda was struck out of the Court's list of cases as the applicant died on 26/01/2011 and no persons expressed their wish to support the application.