European Court of Human Rights

FIFTH SECTION

CASE OF ANDRIANOVA AND OTHERS v. UKRAINE

(Application no. 10319/04)

JUDGMENT

STRASBOURG

12 December 2013

This judgment is final but it may be subject to editorial revision.

In the case of Andrianova and Others v. Ukraine,

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

Boštjan M. Zupančič, President,
Ann Power-Forde,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 19 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 10319/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 25 Ukrainian nationals (“the applicants”), on 20 February 2004.

2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.

3.  On 16 December 2008 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  In the period from January to March 2001 (the exact dates are listed in the appended table) the Kyivskyy District Court of Simferopol delivered decisions according to which the State authorities were obliged to pay the applicants various pecuniary bonuses, to which the applicants were entitled as teachers under the law “On Education”. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.

5.  In their observations to the Court the Government, without providing the exact dates, stated that all the relevant decisions in applicants’ favour were fully enforced from 2005 to 2009.

6.  The applicants confirmed the enforcement, however noted that the enforcement of the judgments started in December 2005 (more than four years from the date when the decisions became final and enforceable).

THE LAW

I.  THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION INSOFAR AS LODGED BY Mr VLADIMIR FEDOTOVICH ANTONOV

7.  In their observations the Government note that one of the applicants, Mr Vladimir Fedotovich Antonov (listed in the annexed table under no. 2), died before the application was lodged (the applicant died on 18 April 2001 while the application was lodged on 20 February 2004). The Government maintain that the signature of the applicant in the application form was forged and invite the Court to strike the application out of its list of cases for abuse of right of petition.

8.  In the letter dated 15 February 2004, which, however, arrived at the Court on 9 October 2009 and was written as response to Government’s observation of April 2009, Mrs Olga Alekseyevna Timokhina informed the Court that she was the wife of the deceased applicant, Mr Vladimir Fedotovich Antonov, and that she had lodged the application before this Court in his name. She further claimed to be his legal successor and expressed the wish to pursue the application. Mrs Timokhina provided the death certificate of Mr Antonov and other documents in support.

9.   The Court observes that an application may only be rejected as abusive within the meaning of Article 35 § 3 of the Convention in extraordinary circumstances, such as if an application was deliberately grounded on a description of facts omitting or distorting events of central importance (see, for example, Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996-IV; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; and Assenov and Others v. Bulgaria, Commission decision of 27 June 1996, Decisions and Reports (DR) 86-B, p. 54).

10.  The Court notes that in the initial application Mr Antonov was stated as one of the applicants and the application form was signed in his name. Not a single document or statement was submitted in relation to the fact that by that time Mr Antonov had already been dead and that someone else was acting as his legal successor. Moreover, in all the letters to the Court (letters dated 23 November 2004, 1 February 2005 and 27 May 2005) Mr Antonov was mentioned as one of authors and, as it became clear now, someone else had signed the letters with his signature. Only following the Government’s observations in April 2009, Mrs Timokhina disclosed her involvement, expressing the wish to maintain the application and acting in her own name.

11.  The Court observes therefore that until October 2009 Mrs Timokhina tried to falsely present that Mr Antonov was still alive and that he acted on his own behalf.

12.  The Court notes that it is far from expected from an applicant to present in his or her application all possible information on a case. It is their duty, however, to present at least those essential facts which are at their disposal and which, they must be aware, are of significant bearing for the Court to be able to properly assess the case (see Milošević v. Serbia (dec.), no. 20037/07, 5 July 2011, § 43). Any such failure would not necessarily have to mean that there has been an abuse of the right to petition. Thus, if none of the facts allegedly concealed concerned any offence or any wrongdoing on his or her part, an applicant’s failure to present such facts to the Court would not be observed as the abuse of the right to petition (see, for example, Al-Nashif and Others v. Bulgaria, (dec.) no. 50963/99, 25 January 2001). However, having regard to the importance of Mrs Timokhina’s failures for the proper determination of the present case, in particular the fact that she had lodged the application on behalf of her deceased husband, acted in his name and failed to inform the Court about her true legal status, the Court finds that such conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention. It thus constitutes an abuse of the right of petition, within the meaning of Article 35 § 3 of the Convention, and rejects the application pursuant to paragraph 4 of that Article.

II.  STRIKE OUT THE APPLICATION INSOFAR AS LODGED BY Ms KRAVCHUK, Ms KUZNETSOVA AND Ms YAVORSKAYA

13.  By letter dated 15 February 2004, which, however, arrived at the Court on 9 October 2009 and was written in response to the Government’s observations of April 2009, the applicants stated that Ms Glybina, Ms Kovalenko, MS Kravchuk, Ms Kuznetsova, Ms Nosenko and Ms Yavorskaya (listed in the annexed table under the nos. 6, 11, 13, 14, 18 and 25) no longer wished to maintain the application.

14.  On 30 November 2009 the Government invited the Court to strike out the application insofar as lodged by those applicants.

15.  As the letter from the applicants did not contain the signatures of the applicants wishing to withdraw their complaints, they were contacted by the Court.

16.  By letter dated 21 June 2013, sent by registered post, the six applicants mentioned in § 13 above, were invited to inform the Court by 22 July 2013 whether they wished to maintain the application. The applicants’ attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.

17.  Applicants Ms Glybina, Ms Kovalenko and Ms Nosenko (listed in the annexed table under nos. 6, 11 and 18) expressed the wish to further maintain the application. However, no response has been received from Ms Kravchuk, Ms Kuznetsova and Ms Yavorskaya (applicants listed in the annexed table under nos. 13, 14 and 25).

18.  The Court considers that, in these circumstances, applicants Ms Kravchuk, Ms Kuznetsova and Ms Yavorskaya (listed in the annexed table under nos. 13, 14 and 25) may be regarded as no longer wishing to pursue their applications, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the application insofar as lodged by them.

19.  In view of the above, it is appropriate to strike the application insofar as lodged by Ms Kravchuk, Ms Kuznetsova and Ms Yavorskaya (the applicants listed in the annexed table under nos. 13, 14 and 25) out of the list.

III.  ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1

20.  The remaining applicants complained about the lengthy non‑enforcement of the judgments given in their favour and about the lack of effective domestic remedies in respect of those complaints. They relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

21.  The Court notes that the complaints of these applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

22.  The Court finds that the decisions in the applicants’ favour were not enforced in due time, for which the State authorities were responsible.

23.  Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § §§ 56-58 and 66-70, 15 October 2009), the Court finds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the prolonged non-enforcement of the decisions in these applicants’ favour. It also considers that there has been a violation of Article 13 of the Convention in that the applicants did not have an effective domestic remedy to redress the damage created by such non-enforcement.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

25.  In the present case, the Court considers it reasonable and equitable (see Kononova and Others v. Ukraine [Committee], no. 11770/03 and 89 other applications, § 24, 6 June 2013; Tsibulko and Others v. Ukraine [Committee], no. 65656/11 and 249 other applications, § 19, 20 June 2013; Pysarskyy and Others v. Ukraine [Committee], no. 20397/07 and 164 other applications, § 24, 20 June 2013) to award 2,000 euros (EUR) to each of the applicants listed in the annexed table (with the exception of Mr Antonov, Ms Kravchuk, Ms Kuznetsova and Yavorskaya). This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

26.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to strike the application insofar as lodged by Mr Vladimir Fedotovich Antonov, Ms Lyudmila Danilovna Kravchuk, Ms Olga Vladimirovna Kuznetsova and Ms Aleksandra Ivanovna Yavorskaya out of its list of cases;

2.  Declares admissible the complaints of the remaining applicants under Article 6 § 1, Article 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the decisions given in their favour and about the lack of effective domestic remedies in respect of those complaints;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1;

4.  Holds that there has been a violation of Article 13 of the Convention;

5.  Holds

(a)  that within three months the respondent State is to pay EUR 2,000 (two thousand euros) to each applicant listed in the annexed table or his or her estate (with exception of Mr Vladimir Fedotovich Antonov, Ms Lyudmila Danilovna Kravchuk, Ms Olga Vladimirovna Kuznetsova and Ms Aleksandra Ivanovna Yavorskay) in respect of pecuniary and non-pecuniary damage, and costs and expenses, plus any tax that may be chargeable to the applicants on the above amounts, which are to be converted into the national currency at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 12 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič
Deputy Registrar President

ANNEX