European Court of Human Rights

 

 

FIFTH SECTION

 

 

 

 

 

CASE OF ROZHENKO AND OTHERS v. UKRAINE

 

(Application no. 2644/04 and 23 other applications)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 April 2013

 

 

 

This judgment is final. It may be subject to editorial revision.




In the case of Rozhenko 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 March 2013,

Having noted that the underlying legal issue in the applications is already the subject of well-established case-law of the Court (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, 15 October 2009),

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

PROCEDURE




  The case originated in 24 applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, whose details are specified in the appended tables (“the applicants”).




  The applicants in applications nos. 17176/07 and 48229/07 died. The applications were pursued in their name by the persons of the required standing, their relatives or heirs to their estate.




  The Ukrainian Government (“the Government”) are represented by their Agent, Mr Nazar Kulchytskyy.




  The applications, which mainly concern the issues of lengthy failure to enforce domestic decisions given in the applicants’ favour, were communicated to the Government on various dates.




  On various dates the Government submitted to the Court a number of unilateral declarations aimed at resolving the non-enforcement issues. The Government requested the Court to strike the applications concerned out of the list of cases pursuant to Article 37 § 1 (c) of the Convention on the basis of the declarations. The Court examined the declarations and decided to reject the Government’s request.

THE FACTS

THE CIRCUMSTANCES OF THE CASE




  On the dates set out in the appended tables domestic courts delivered judgments according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The judgments became final and enforceable. However, the applicants were unable to obtain the enforcement of the judgments in due time because of State’s failure to comply with these decisions.




  Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.

THE LAW

I.  JOINDER OF THE APPLICATIONS




  In view of the similarity of the applications in terms of the principal legal issue raised, the Court finds it appropriate to join them.

II.  THE STANDING OF THE APPLICANTS IN APPLICATIONS Nos. 17176/07 AND 48229/07




  The Court considers that the applicants’ heirs or next-of-kin in the applications nos. 17176/07 and 48229/07 (see paragraph 2 above) have standing to continue the proceedings in the applicants’ stead (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006).

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




  The 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, expressly or in substance, Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 which read, in so far as relevant, as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law ...”

Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

A.  Admissibility




  On various dates the Government submitted observations as to the admissibility of the applications, claiming that the applicants’ complaints were inadmissible or partly inadmissible for various reasons.




  The applicants disagreed with the Governments’ submissions.




  The Court notes that similar objections have already been dismissed in a number of its judgments (see, Voytenko v. Ukraine, no. 18966/02, §§ 32-35, 29 June 2004). Accordingly, the Court dismisses the Government’s preliminary objections and declares the applicants’ complaints with respect to lengthy failure to enforce the judgments given in their favour admissible.

B.  Merits




  The Government submitted, with respect to application no. 11442/04 only, that no violation of the applicant’s rights occurred as the judgments in that case could not be enforced and property returned to the applicant in view of the fact that after transfer of the seized property to third private parties it was embezzled by them.




  The applicant disagreed.




  As the applicant’s property was seized by the investigating officer of the Prosecutor’s Office of the Dnipropertrovsk Region, the Court finds that the Government’s responsibility for the debt is not affected by their contention that the property in question was embezzled by third parties. The Court accordingly dismisses the Government’s objection as to the merits of the applicant’s complaints in application no. 11442/04.




  The Court concludes, with respect to all the applications, that the judgments in the applicants’ favour were not enforced in due time, for which the State authorities were responsible.




  Having regard to its well-established case-law on the subject (see Yuriy Nikolayevich Ivanov, cited above, §§ 56-58 and 66-70), 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 judgments in the applicants’ favour. It also considers that there had 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION




  Some of the applicants raised other complaints under the Convention which the Court has carefully examined. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.




  It follows that those complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION




  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.”




  In the present case, bearing in mind its previous decision on the matter (see Kharuk and Others v. Ukraine [Committee], no. 703/05 and 115 other applications, § 25, 26 July 2012), the Court considers it reasonable and equitable to award 3,000 euros (EUR) to each applicant in the applications which concern non-enforcement delays exceeding three years (the applications tabulated in Appendix 1) and EUR 1,500 to each applicant in the other applications (the applications tabulated in Appendix 2). These sums are to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.




  The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable.




  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 join the applications;

 

2.  Declares the applicants’ complaints under Article 6 § 1 and 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 admissible and the remainder of the applications inadmissible;

 

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 the respondent State is to enforce the domestic decisions in the applicants’ favour which remain enforceable, and is to pay, within three months, EUR 3,000 (three thousand euros) to each applicant or his or her estate in the applications tabulated in Appendix 1 and EUR 1,500 (one thousand five hundred euros) to the applicant in the application tabulated in Appendix 2 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 11 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Stephen Phillips                                                          Boštjan M. Zupančič
     Deputy Registrar                                                                   President




APPENDIX 1

(non-enforcement delays more than three years)

 

No.	Application no. and date of introduction	Applicant name date of birth place of residence	Relevant domestic decisions
1.	2644/04 08/12/2003	Ruslan Yevgenovych ROZHENKO 10/11/1965 Kyiv	Kyiv Regional Court of Appeal, 12/03/2003
2.	11442/04 11/02/2004	Stanislav Grigoryevich KIRICHENKO 02/12/1964 Dnipropetrovsk	1) Kirovskyy (district) Court of Dnipropetrovsk, 27/07/2003   2) Kirovskyy (district) Court of Dnipropetrovsk, 25/08/2003
3.	17410/05 25/04/2005	Anatoliy Aleksandrovich BAZELYUK 16/05/1949 Odessa	Suvorovskyy (district) Court of Odesa, 28/02/2003
4.	17176/07 29/03/2007	Aleksandr Pavlovich MIKHAYLOV 01/04/1939 Krasnyy Luch	1) Krasnyy Luch Court, 01/08/2001   2) Krasnyy Luch Court, 13/05/2003   3) Krasnyy Luch Court, 10/12/2003   4) Krasnyy Luch Court, 04/11/2004   5) Krasnyy Luch Court, 26/05/2006
5.	42782/07 19/09/2007	Vitaliy Nikolayevich SIMUSHIN 07/12/1958 Torez	Torez Court, 23/03/2005
6.	46001/07 29/09/2007	Viktor Vasilyevich BEZRUK 25/08/1962 Torez	Torez Court, 23/03/2005
7.	48229/07 24/10/2007	Klavdiya Ivanovna KASPEROVICH 14/06/1937 Krasnyy Luch	1) Krasnyy Luch Court, 16/01/2002   2) Krasnyy Luch Court, 06/10/2005
8.	13818/08 05/03/2008	Nadezhda Petrovna KARPUKHINA 05/06/1956 Knyaginevka	Krasnyy Luch Court, 12/05/2005
9.	13835/08 05/03/2008	Yelena Vladimirovna PLETYONKINA 05/12/1975 Vakhrukhevo	Krasnyy Luch Court, 27/07/2005
10.	23406/08 08/05/2008	Nikolay Vasilyevich GORBUNOV 08/11/1949 Kherson	Komsomolskyy (district) Court of Kherson, 24/05/2004
11.	23427/08 21/11/2007	Vadym Volodymyrovych VYGOVSKYY 02/05/1967 Mykolayiv	Mykolayiv Regional Court of Appeal, 15/03/2006
12.	30858/09 30/03/2009	Anatoliy Pavlovich SHAMIN 19/02/1957 Makiyivka	Tsentralno-Miskyy (district) Court of Makiyivka, 26/12/2007
13.	35901/09 24/06/2009	Tetyana Mykolayivna PAVYTSKA 06/10/1965 Zhytomyr	1) Zhytomyr Regional Administrative Court, 21/11/2007   2) Zhytomyr Regional Administrative Court, 05/10/2007
14.	39123/09 09/07/2009	Larysa Mykolayivna KOSYGINA 15/03/1970 Zhytomyr	1) Zhytomyr Regional Administrative Court, 21/11/2007   2) Zhytomyr Regional Administrative Court, 05/10/2007
15.	48131/09 27/08/2009	Viktor Georgiyovych ZAGRANYCHNYI 28/11/1949 Ivanivka	Pecherskyy (district) Court of Kyiv, 28/02/2002
16.	48596/09 25/08/2009	Vladyslav Viktorovych KRYZHANIVSKYY 14/02/1961 Oliyivka	1) Zhytomyr Regional Administrative Court, 21/11/2007   2) Zhytomyr Regional Administrative Court, 05/10/2007
17.	50861/09 04/09/2009	Motrona Pavlivna BOGDANETS 07/11/1914 Rokytne	Rivne Regional Administrative Court, 28/04/2009
18.	14165/10 20/02/2010	Oleksandr Volodymyrovych YEVDOKYMOV 14/09/1950 Kharkiv	Frunzenskyy (district) Court of Kharkiv, 26/11/2007
19.	15965/10 01/03/2010	Yevgeniy Petrovich DOLINSKIY 05/11/1947 Dzerzhynsk	Dzerzhynsk Court, 29/11/2005
20.	29139/10 10/05/2010	Aleksandr Vyacheslavovich KOVALENKO 17/11/1964 Lysychansk   Nadezhda Vasilyevna KOVALENKO 06/12/1959 Lysychansk	1) Lysychanskiy Court, 04/11/2008   2) Lysychanskiy Court, 25/11/2008   3) Lysychanskiy Court, 20/11/2008
21.	71869/10 19/11/2010	Galyna Opanasivna FEDORENKO 08/09/1951 Kremenchuk	Kryukivskyy (district) Court of Kremenchuk, 23/01/2003
22.	74285/10 09/11/2010	Arkadiy Ivanovych SHAPOVALOV 23/05/1964 Kremenchuk	Avtozavodskyy (district) Court of Kremenchuk, 27/12/2001
23.	5737/11 14/01/2011	Oleksandr Davydovych CHAKIR 18/10/1968 Starokostyantyni	Starokostiantyniv Court, 08/08/2007

 




APPENDIX 2

(non-enforcement delays less than three years)

 

No.	Application no. and date of introduction	Applicant name date of birth place of residence nationality	Final domestic decision details
24.	12022/07 03/03/2007	Viktor Viktorovich SLOBODYANYUK 21/01/1966 Novaya Kakhovka	Kherson Regional Commercial Court, 06/10/2006