Resolution CM/ ResDH (2010)219 [1]

Execution of the judgment of the European Court of Human Rights

Volovik against Ukraine

(Application No. 15123/03, judgment of 6 December 2007, final on 31 March 2008,

rectified on 3 March 2008)

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 once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a denial of justice to the applicant due to the first instance court ’ s repeated refusals to grant the applicant leave to appeal against a decision of this court (violation of Article 6 paragraph 1) (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;

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;

Noting the Court ’ s conclusion in the case that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent 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

- 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 this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)219

Information on the measures taken to comply with the judgment in the case of

Volovik against Ukraine

Introductory case summary

The case concerns a violation of the applicant ’ s right of access to a court due to the first instance court ’ s repeated refusals to grant him leave to appeal. The Code of Civil Procedure of 1963, in force at the material time, provided that an appeal should be submitted through the court of first instance that adopted the contested decision. The first instance court was entitled to decide on the admissibility of the appeal. Although the Code expressly provided for the grounds for declaring appeals inadmissible, the European Court found that there were no safeguards available in the domestic legal system against potentially arbitrary refusals by first-instance courts to refer an appeal to a court of appeal.

The European Court further stated that the repeated refusals of the first-instance court to grant the applicant leave to appeal were over-formalistic and did not correspond to the filtering purpose.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The Court held that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage sustained by the applicant.

b) Individual measures

The Ukrainian legislation provides for a possibility to request reopening of the proceedings following a violation found by the European Court . By letter of 16 April 2008 , the government informed the applicant of his right to seek reopening of the impugned proceedings. The applicant has lodged no application for such reopening within the time-limits set by the Ukrainian legislation.

II. General measures

a) Legislative amendments

The new Code of Civil Procedure entered into force on 1 September 2005. According to its provisions, the first instance courts lost the power to filter appeals against their decisions; the courts of appeal have become the sole jurisdiction competent to decide on the admissibility and merits of such appeals.

b) Publication of the judgment

The judgment was translated into Ukrainian and placed on the Ministry of Justice ’ s official website. It was also published in the government ’ s official bulletin, the Official Herald of Ukraine [ Ofitsiinyi Visnyk Ukrainy ], no. 32 of 8 May 2008. The summary of the judgment was published in the Government Currier [ Uriadovyi Kurier ], no. 85 of 13 May 2008.

III. Conclusions of the respondent state

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

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies