European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/2182.html
Cite as: [2010] ECHR 2182
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FIFTH SECTION
DECISION
Application no.
10197/06
by Volodymyr Vasylyovych MELNYK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 7 December 2010 as a Committee composed of:
Mark
Villiger,
President,
Karel
Jungwiert,
Isabelle
Berro-Lefèvre,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having regard to the above application lodged on 1 March 2006,
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 on 23 April 2010 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Volodymyr Vasylyovych Melnyk, is a Ukrainian national who was born in 1980 and lives in Brovary. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
In August 2003 the applicant brought a civil claim for damages against his former employer, the State Company Brovary Wholesale Market (ДП «Броварський оптовий ринок»), and the Ministry of Agriculture of Ukraine.
On 29 August 2005 the Shevchenkivsky District Court of Kyiv awarded him UKR 6,110.25 (EUR 995 at the material time) in salary arrears to be paid by his former employer. The court also awarded the applicant UAH 1,000 (EUR 163 at the material time) in respect of non-pecuniary damage to be paid by the Ministry of Agriculture. It further dismissed the remainder of the applicant’s claim.
On 18 January 2005 and 6 June 2007 respectively, the Kyiv City Court of Appeal and the Donetsk Regional Court of Appeal, sitting as a court of cassation, dismissed the applicant’s appeals and upheld the judgment.
As the judgment became final, the State Bailiffs’ Service instituted proceedings to enforce it. So far it has been enforced only in part.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive and challenged their outcome. Relying on the same provision and Article 1 of Protocol No. 1, he complained that the judgment of 29 August 2005 had not been enforced. He also invoked Article 13 of the Convention, stating that he had had no effective domestic remedy in respect of the lengthy non-enforcement of the judgment.
THE LAW
A. Length of the proceedings, including enforcement of the judgment in the applicant’s favour, and the lack of an effective remedy in this respect
Following the Yuriy Nikolayevich Ivanov v. Ukraine pilot judgment cited above, in a letter dated 23 April 2010, the Government informed the Court of their unilateral declaration, signed on the same date, with a view to solving the issue raised by the application. The declaration provided as follows:
“The Government of Ukraine acknowledge the infringement of the applicant’s rights, guaranteed Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention as to the excessive duration of the proceedings in his case and the lengthy enforcement of the judgement of 29 August 2005.
I, Yuriy Yevgenovych Zaytsev, the Agent of the Government of Ukraine declare that the Government of Ukraine are ready to pay Mr Volodymyr Vasylyovych Melnyk the rest of the debt according to the judgment of the Shevchenkivsky District Court of Kyiv of 29 August 2005 still owed to him and also ex gratia the amount of 1,500 (one thousand five hundred) euros.
The Government of Ukraine therefore invite the Court to strike the application no. 10197/06 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.
This amount of 1,500 (one thousand five hundred) euros, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It 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 this amount within the said three-month period, the Government undertake to pay simple interest on it 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 case.”
The applicant made no comment on the Government’s declaration.
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 further reiterates that in its pilot judgment (Yuriy Nikolayevich Ivanov v. Ukraine, cited above) it required Ukraine to
“grant adequate and sufficient redress, within one year from the date on which the present judgment [became] final, to all applicants [...] whose complaints about the prolonged non-enforcement of domestic decisions [had] been communicated to the respondent Government.”
In the same judgment the Court also held that
“Proceedings in cases which [had] already been communicated to the Government under Rule 54 § 2 (b) of the Rules of Court, but in which the Court [had] not yet decided on the merits, [would] be adjourned for [one year from the date on which this judgment became final].
...
The decision to adjourn the above cases [would] be taken without prejudice to the Court’s power at any moment to declare inadmissible any such case 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 applicant 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 excessive length of the proceedings, including enforcement of the judgment in the applicant’s favour, is explicitly acknowledged by the Government. It also notes that the compensation offered is comparable with its awards in similar cases.
The Court therefore considers that it is no longer justified to continue the examination of this part of the application. 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 this part of the application.
Accordingly, this part of the application should be struck out of the list.
B. Remainder of the complaints
Having carefully examined the remainder of the applicant’s 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 this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the excessive length of the proceedings, including enforcement of the judgment in the applicant’s favour;
Decides to strike the application 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 Mark Villiger Deputy Registrar President
