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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Sergey Vladimirovich ORLOV v Ukraine - 44404/07 [2010] ECHR 2151 (14 December 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2151.html Cite as: [2010] ECHR 2151 |
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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 applications 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 applicants 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 the national courts, holding in favour of the applicants, 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 applicants 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 applicants 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 applications. It is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of these parts of the applications.
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. |
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 |
GUZHOVSKYY 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 |
06.11.2007, 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 |
06.11.2007, 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 |
05.11.2007, 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 |
|
|
47244/09 |
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 |
