European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 19938/08
Valeriy Vasilyevich NIKITENKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 January 2012 as a Committee composed of:

Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 7 April 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Valeriy Vasilyevich Nikitenko, is a Ukrainian national who was born in 1937 and lives in Lugansk. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.

In June 1995 the applicant instituted court proceedings against a company claiming social security payments and benefits for his occupational disability. On 18 January 2010 they were completed by the final decision of the Supreme Court.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. He further complained under Articles 6 § 1 and 17 of the Convention about their outcome, alleging that the national courts violated the law in his case and adopted arbitrary decisions.

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings in a labour dispute initiated by him against his former employer which had lasted for more than six years.

He also complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the alleged unfairness of the aforementioned proceedings. Relying on Article 14 of the Convention and Article 1 of Protocol No. 12, the applicant additionally complained that the courts discriminated against him given that he was Russian-speaking. Lastly, he referred to Articles 13 and 17 of the Convention complaining about the unsuccessful outcome of his grievances before the domestic authorities.

THE LAW

1. By letter dated 31 August 2011, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of Ukraine acknowledge the excessive duration of the consideration of the applicant’s case before the national courts.

I, Valeria Lutkovska, the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay 700 (seven hundred) euros to Mr. Valeriy Vasilyevich Nikitenko.

The Government therefore invite the Court to strike the application out of the list of cases. The Government of Ukraine 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 sum is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable, and converted into the national currency of the respondent State at the rate applicable on the date of settlement. 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.”

The applicant objected to the Government’s declaration.

The Court recalls 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, under (a), (b) or (c) of paragraph 1 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”.

It also recalls 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.

The Court has established in a number of cases, including those brought against Ukraine, its practice concerning complaints about the violation of the right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Pavlyulynets v. Ukraine, no. 70767/01, §§ 39-52, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, §§ 52-61, 21 December 2006).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in respect of the excessive length of the civil proceedings (Article 37 § 1 in fine).

Accordingly, this part of the application should be struck out of the list pursuant to Article 37 § 1(c).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) 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 civil proceedings;

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