European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2011/2050.html
Cite as: [2011] ECHR 2050

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FIFTH SECTION

DECISION

Application no. 42854/09
by Borys Romanovych STOLYARUK
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 15 November 2011 as a Committee composed of:

Mark Villiger, President,
Karel Jungwiert,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 31 July 2009,

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 application out of the list of cases and the applicant’s reply thereon,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Borys Romanovych Stolyaruk, is a Ukrainian national who was born in 1965 and lives in Oleksandriya. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.

By a judgment of 11 April 2008, the domestic court ordered the local authorities to pay the applicant certain amounts. On 21 October 2008 the court of appeal amended the above judgment and it became final. However, it remains unenforced.

COMPLAINT

The applicant complained about non-enforcement of the above judgment. He referred to Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

THE LAW

By a letter dated 28 May 2010, the Government informed the Court of their unilateral declaration, signed on the same date, with a view to settling the applicant’s case. By this declaration, the Government acknowledged the excessive duration of the enforcement of the applicant’s judgment and undertook to pay him the outstanding debt according to that judgment as well as ex gratia 285 euros. The remainder of the declaration read as follows:

“The Government therefore invite the Court to strike the [application] 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 [ex gratia sum] ... [is] 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. [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 sum] 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]”.

On 9 November 2010 the applicant informed that he agreed with the terms of the declaration.

The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified in paragraph 1 (a), (b) or (c) of that Article. 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 further recalls that in its pilot judgment (Yuriy Nikolayevich Ivanov, 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 light of the applicant’s agreement with the Government’s declaration, the Court considers that Article 37 § 1 (b) of the Convention is relevant in the present case. The Court takes note that the parties have agreed terms for settling the case. This is also in line with the pilot judgment (Yuriy Nikolayevich Ivanov, cited above, § 99 and point 6 of the operative part) and the Court finds no reasons to justify a continued examination of the case. Accordingly, it should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration and the applicant’s reply thereon;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.

Stephen Phillips Mark Villiger
Deputy Registrar President