Lexploria

FIFTH SECTION

CASE OF KYSELYOVA AND OTHERS v. UKRAINE

( Application no. 6155/05 and 22 other s – see list appended )

JUDGMENT

STRASBOURG

9 January 2014

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

In the case of Kyselyova and O thers 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 3 December 2013,

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

PROCEDURE

1 . The case originated in 23 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 nationals and companies based in Ukraine. Their details are specified in the appended tables (“the applicants”).

2 . The Government were represented by their Agent, Mr Nazar Kulchytskyy .

3 . The applications listed in the Appendix to the present judgment were communicated to the Government on various dates between 2008 and 2011.

4 . On various dates the Government submitted to the Court a number of unilateral declarations aimed at resolving the non-enforcement issues raised in three applications. The Government requested the Court to strike the applications concerned out of the list of cases pursuant to Article 37 § 1 (c) of the Convention on the basis of the declarations. The Court examined the declarations and decided to reject the Government ’ s requests.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5 . On the dates set out in the appended table domestic courts and a labour disputes commission 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.

6 . 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

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

8 . The applicants 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.

9 . The Court notes that the above complaints (see paragraph 8 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.

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

11 . 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.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

12 . In applications nos. 26359/06, 21116/07, 47023/07, 15730/08, 21181/08, 21701/08, 46205/08 and 33523/09 the applicants raised complaints concerning non-enforcement of other domestic court decisions. Having examined the parties ’ submissions and the available material, the Court decided to reject these complaints as manifestly ill-founded as whole, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

13 . Some of the applicants also 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. 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14 . 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.”

15 . In the present case, 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. This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

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

17 . 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 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 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 period plus three percentage points.

Done in English, and notified in writing on 9 January 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič Deputy Registrar President

APPENDIX

No.

Application

no. and date of introduction

Applicant name

date of birth

Relevant domestic decision

6155/05

26/01/2005

Zhanna Mykhaylivna KYSELYOVA

30/07/1972

Kamyanets-Podilskyy Court, 03/06/2003 (in the light of Kamyanets-Podilskyy Court, 19/04/2002 and 09/10/2001)

38540/05

12/10/2005

1) Zoya Dmitriyevna PANCHUK

07/10/1939

2) Irina Vladimirovna KRINITSYNA

12/051960

3) Sergey Vasilyevich LAKURIN

10/08/1965

4) Irina Igorevna LAKURINA

14/02/1965

5) Tatyana Nikolayevna LESHEFINA

11/12/1954

6) Lyubov Afanasyevna MASHKINA

24/06/1952

7) Lyubov Andreyevna MOSKALENKO

02/03/1947

8) Marina Petrovna VALIKOVA

11/06/1980

9) Sergey Anatolyevich VOLOVIKOV

27/06/1965

10) Svetlana Viktorovna VOLOVIKOVA

07/06/1977

11) Ivan Borisovich ZUBKOV

07/08/1946

12) Lyudmila Danilovna GALINSKAYA

06/01/1956

13) Olga Vasilyevna LEBEDEVA

01/01/1949

1) Zoya Dmitriyevna PANCHUK

Torez Court, 25/05/2004

2) Irina Vladimirovna KRINITSYNA

Torez Court, 25/05/2004

3) Sergey Vasilyevich LAKURIN

Torez Court, 25/05/2004

4) Irina Igorevna LAKURINA

Torez Court, 25/05/2004

5) Tatyana Nikolayevna LESHEFINA

Torez Court, 25/05/2004

6) Lyubov Afanasyevna MASHKINA

Torez Court, 25/05/2004

7) Lyubov Andreyevna MOSKALENKO

Torez Court, 25/05/2004

8) Marina Petrovna VALIKOVA

Torez Court, 25/05/2004

9) Sergey Anatolyevich VOLOVIKOV

Torez Court, 25/05/2004

10) Svetlana Viktorovna VOLOVIKOVA

Torez Court, 25/05/2004

11) Ivan Borisovich ZUBKOV

Torez Court, 25/05/2004

12) Lyudmila Danilovna GALINSKAYA

Shakhtarsk Court, 27/05/2004

13) Olga Vasilyevna LEBEDEVA

Shakhtarsk Court, 27/05/2004

2468/06

10/12/2005

Natalya Ivanovna ABAKUMOVA

09/03/1969

Krasnograd Court, 05/06/2007, as amended by the Kharkiv Regiolnal Court of Appeal on 14/08/2007

11534/06

06/03/2006

Anna Alekseyevna POLYAKOVA

01/01/1942

Yevgeniy Nikolayevich PIKULITSKIY

29/10/1939

Applicant 1:

1) Slovyansk Court, 31/07/2003

Applicant 2:

2) Slovyansk Court, 13/12/2002

26359/06

15/06/2006

Dmitriy Iosifovich TURLAKOV

01/05/1943

Kupyansk Court, 17/02/2006

12326/07

01/03/2007

Andrey Ivanovich KUPRIYENKO

01/01/1948

1) Khmilnyk Court, 11/08/1997 in the light of the same court ’ s judgment of 22/09/2005

2) Khmilnyk Court, 23/01/2001 in the light of the same court ’ s judgment of 22/09/2005

21116/07

27/04/2007

Grygoriy Grygorovych BODNAR

05/10/1947

Kamyanets-Podilskyy Court, 17/10/2005, quashed by the Khmelnytskyy Regional Court of Appeal on 11/02/2008

44334/07

27/09/2007

Tamara Mykolayivna DENYSYUK

10/07/1953

Gagarinskyy District Court of Sevastopol, 12/01/2006

47023/07

13/10/2007

Anatoliy Vladimirovich RUDENKO

01/02/1949

Krasnyy Luch Court, 14/04/2004

6509/08

23/01/2008

Svetlana Vasilyevna ZHUKOVA

06/09/1962

Dmitriy Olegovich ZHUKOV

07/09/1986

Selydiv Court, 28/12/2004

11597/08

26/02/2008

Volodymyr Mykolayovych MELETSKYY

28/08/1951

1) Kozelets Court, 18/04/2005

2) Prydniprovskyy District Court of Cherkasy, 28/02/2007

15730/08

Viktor Nikolayevich

VELICHKO

11/08/1964

Teplodar Court, 04/04/2007

21181/08

19/04/2008

Aleksandr Grigoryevich POPKOV

12/11/1944

1) Slovyansk Court, 24/11/2000

2) Slovyansk Court, 26/02/2001

3) Slovyansk Court, 10/10/2001

4) Slovyansk Court, 23/11/2004

5) Slovyansk Court, 12/12/2007

6) Slovyansk Court, 11/11/2008

21701/08

21/04/2008

KARINA, TOV

Lviv Commercial Court, 07/12/2006

37616/08

19/07/2008

Vyacheslav Semyonovich USOV

31/05/1941

1) Zhovti Vody Court, 06/10/2000

2) Zhovti Vody Court, 10/06/05 as amended by the Dnipropetrovsk Regional Court of Appeal on 25/01/2006

38364/08

31/07/2008

KORTEKS, VAT

Zhytomyr Regional Commercial Court, 17/10/2005

46205/08

12/09/2008

Yaroslav Vasilyovych BOYCHUK

15/08/1948

1) Verkhovyna Court, 05/07/2004 as amended by the Ivano-Frankivsk Regional Court of Appeal on 30/09/2004

2) Verhovyna Court, 26/03/2007

59374/08

20/11/2008

Gulyam Khabib AKBARI

07/01/1959

Illichivskyy District Court of Mariupol, 14/12/2006

18906/09

25/03/2009

Viktor Leonidovich KRYTSYN

22/09/1954

Sudak Court, 16/01/2006 as amended by judgment of the Crimea Court of Appeal on 20/09/2006

31367/09

02/06/2009

Vladimir Leonidovich KISHCHENKO

01/10/1953

Novogrodivka Court, 6/05/2006

33523/09

05/06/2009

Vitaliy Ivanovich DEMCHENKO

29/11/1953

Labour Disputes Commission, 17/12/1997

35246/10

12/05/2010

Igor Petrovych GAVRYLYUK

23/06/1952

Olena Petrivna KRYLAS

22/09/1952

1 applicant:

1) Zhytomyr Circuit Administrative Court, 20/03/2008,

2) Zhytomyr Circuit Administrative Court, 07/10/2008

3) Bogunskyy District Court of Zhytomyr, 02/11/2009

2 applicant:

1) Zhytomyr Circuit Administrative Court, 24/03/2008

2) Zhytomyr Circuit Administrative Court, 23/02/2009

3) Korolyovskyy District Court of Zhytomyr, 19/01/2010

42850/10

21/07/2010

Andriy Petrovych KITURA

02/10/1943

Sykhivskyy District Court of Lviv, 19/10/2007