Resolution CM/ ResDH (2011)313 [1]

Execution of the judgment s of the European Court of Human Rights

8 cases against Ukraine concerning quashing of final judgments

through the supervisory review procedure (civil proceedings)

( Agrot e hservis , A pplication N o. 62608/00, judgment of 05/07/2005, final on 30/11/2005,

Ivanova , A pplication N o. 74104/01, judgment of 13/09/2005, final on 13/12/2005,

Maznyak , A pplication N o. 27640/02, judgment of 31/01/2008, final on 30/04/2008,

Poltorachenko , A pplication N o. 77317/01, judgment of 18/01/2005, final on 18/04/2005,

Zherdin , A pplication N o. 53500/99, judgment of 21/02/2006, final on 21/05/2006,

Tregubenko , A pplication N o. 61333/00, judgment of 02/11/2004, final on 30/03/2005,

Vasilyev , A pplication N o. 11370/02, judgment of 21/06/2007, final on 24/09/2007,

Timotiyevich , A pplication N o. 63158/00, judgment of 08/11/2005, final on 08/02/2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the principle of legal certainty as well as of the applicants ’ right to peaceful enjoyment of their possessions on account of quashing of binding and enforceable judgments in supervisory-review proceedings (violations of article 6, paragraph 1 of the Convention and of Article 1 of Protocol No. 1) ;

Recalling further that the Tregubenko case also concerns a denial of the applicant ’ s access to court due to a refusal by the domestic courts to consider his claim on the merits (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment s ;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant s the just satisfaction where provided so in the judgment s (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respo ndent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in th e s e case s and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011) 313

Information about the measures to comply with the judgments

in 8 cases against Ukraine concerning the quashing of final judgments

through the supervisory review procedure ( civil proceedings )

Introductory case summaries

These cases concern the quashing of final and binding judgments in civil proceedings by way of supervisory review ( protest ). The Court found that the supervisory review of final and binding judgments, which was neither directly accessible to parties nor subject to any time-limit, nor justified by substantial and compelling circumstances, was not compatible with the principle of legal certainty which is one of the fundamental aspects of the R ule of L aw (violation s of Article 6, paragraph 1).

In all cases, except for the cases of Vasilyev , Zherdin and Maznyak , the Court also found a violation of the applicants ’ right to peaceful enjoyment of their possessions as a result of the supervisory review of the final and binding judgments (violations of Article 1 of Protocol No. 1).

The Tregubenko case moreover concerns a violation of the applicant ’ s right of access to a court. The domestic courts stated that they had no jurisdiction whatsoever to decide on particular types of civil disputes, such as the applicant ’ s dispute, because the domestic legislation at the material time provided a non-judicial settlement instead. The Court considered that such an exclusion was in itself contrary to the right of access to a tribunal as guaranteed by Article 6, paragraph 1, of the Convention.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Agrotehservis , 62608/00

-

5 000 EUR

-

5,000 EUR

Paid on 18/05/2006 with default interest paid on 18/07/2006

Ivanova ,

74104/01

3 000 EUR

480 EUR

3,480 EUR

Paid on 23/03/2006 with default interest

Maznyak , 27640/02

No just satisfaction awarded

Poltorachenko , 77317/01

3 536.42 EUR

5 000 EUR

-

8,536.42 EUR

Paid on 08/07/2005

Zherdin ,

53500/99

-

2 000 EUR

90 EUR

2,090 EUR

Paid on 26/06/2006

Tregubenko , 61333/00

53 657.81 EUR

5 000 EUR

1 000 EUR

6,000 EUR

Paid on 13/07/2005

Vasilyev

11370/02

-

2 000 EUR

-

2,000 EUR

Paid on 18/07/2008 with default interest

Timotiyevich , 63158/00

2 500 EUR

-

27,500 EUR

Paid on 31/05/2006 with default interest

In the case of Maznyak , the Court did not award any just satisfaction as it did not discern any link between the pecuniary damage claimed by the applicant and the violation found. The Court found the same for the pecuniary damage claimed in the case of Vasilyev . In the case of Zherdin , the applicant did not submit a claim for pecuniary damage. In the case of Agrotehservis , the Cou rt found that there was no question of pecuniary damage to be determined, as the claim related to the unpaid judgment debt which was deemed premature in the Court ’ s decision on admissibility.

In the cases of Vasilyev and Timotievich , the just satisfaction was paid in conditions apparently accepted by the applicants.

b) Individual measures

Domestic legislation provides for the possibility of the reopening of domestic proceedings following a judgment by the European Court . In addition, once such a judgment becomes final, the Government Agent informs the applicants by written letters of their right to request the reopening of domestic proceedings, in case the applicants wish to do so.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

(a) Legislative measures

- Supervisory review : the supervisory review procedure was abolished in June 2001 following a legislative reform which set up a three-level court system (first-instance court, court of appeal and cassation court with effect from 29 June 2001). According to the Court ’ s inadmissibility decisions in the cases of Vorobyeva (of 17/12/2002, No. 27517/02) and MPP Golub (of 18/10/2005, No. 6778/05), the review of final judgments through this new cassation procedure in all type s of proceedings meet the requirements of the Convention. In these decisions, the Court found that this procedure was similar to that existing in other member states, that it was available to each party in a civil case and that it did not depend on the discretionary power of a state authority. The Court also pointed out that the judgments could not be challenged in cassation indefinitely, but only within a specific period of time prescribed by law.

- Access to court : The Constitution of Ukraine of 28/06/1996 provides that everyone has the right to challenge actions or inactivity of public and local authorities before a court and that jurisdiction of the courts extends to all legal relations which arise in the State (Articles 55 and 124). On 1 September 2005, the new Code of Civil Procedure and Code of Administrative Procedure entered into force. These new Codes (Article 3 and Article 2 of the Codes, respectively) implement the mentioned provisions of the Constitution so that a situation similar to the one in the Tregubenko case cannot arise anymore.

(b ) Publication and dissemination of the judgments

The judgments of the Court were translated into Ukrainian and placed on the official website of the Ministry of Justice. They were also circulated to the relevant authorities and published in the official government bulletin, the Official Herald of Ukraine [ Ofitsiinyi Visnyk Ukrainy ].

References to these judgments were made in a number of training course s for judges and prosecutors.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Ukraine has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.