European Court of Human Rights

 

 

FIFTH SECTION

 

 

 

 

 

CASE OF TERNOVIK AND OTHERS v. UKRAINE

 

(Application no. 19430/06 and 19 other applications)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 April 2013

 

 

 

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




In the case of Ternovik 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

1.  The case originated in 20 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, except for the applicant in application no. 64583/09, who is a Russian national. Their personal details are set out in the appended table (“the applicants”).




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




  On 4 February 2013 the Russian Government informed the Court that they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the Court’s proceedings concerning the above application.




  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 decisions in due time because of the authorities’ failure to take specific budgetary or regulatory measures, because of the introduction of bans on the attachment and sale of property belonging to State-owned or controlled companies.




  With the exception of applications no. 25358/06, 1777/08, 20895/09 and 64583/09 in which the judgment in the applicant’s favour was enforced on 2 June 2011, 18 April 2008, 9 July 2009 and on 18 January 2011 the domestic decisions in all other applications have not been enforced in full.




  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.  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.”




  The Court notes that the applicants’ above complaints 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.




  The Court finds 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.

III.  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.

IV.  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 and EUR 1,500 to each applicant in the other applications. 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 and place of residence	Relevant domestic decisions
1.	19430/06 20/04/2006	Vasiliy Aleksandrovich TERNOVIK 18/01/1960 Novogrodovka	Novogrodivka Court, 17/09/1998
2.	25358/06 30/05/2006	Vasyl Grygorovych DYABELKO 14/02/1956 Sumy	Kovpakivskyy District Court of Sumy, 11/08/2005
3.	2555/07 13/12/2006	Valeriy Ivanovich ZVENIGORODSKIY 09/07/1951 Kirovograd	Leninskyy District Court of Kirovograd, 21/08/2001
4.	2560/07 13/12/2006	Anatoliy Vasilyevich PIROZHENKO 26/08/1940 Pavlysh   Vladimir Anatolyevich TOMILO 08/09/1963 Pavlysh	Applicant 1: Leninskyy District Court of Kirovograd, 21/08/2001   Applicant 2: Leninskyy District Court of Kirovograd, 21/08/2001
5.	39111/07 08/08/2007	Mikhail Viktorovich KOPEYKO 04/02/1976 Makiyivka	Gornyatskyy District Court of Makeyivka, 19/09/2005
6.	1777/08 30/12/2007	Sergey Aleksandrovich BOBROVSKIY 13/02/1964 Mariupol	Prymorskyy District Court of Mariupol, 05/07/2004
7.	4988/08 24/12/2007	Viktor Gennadyevich TITARENKO 13/07/1974 Velyki Bubyshcha	Krasnyy Luch Court, 16/06/2005
8.	13791/08 05/03/2008	Olga Nikolayevna SKOBINA 07/02/1960 Vakhrushevo	Krasnyy Luch Court, 12/05/2005
9.	25997/08 15/05/2008	Vladimir Leonidovich LUKICHEV 17/09/1961 Sevastopol   Lyudmila Mikhaylovna BELKINA 17/12/1947 Sevastopol	Applicant 1 Gagarinskyy District Court of Sevastopol, 26/11/2007   Applicant 2 Gagarinskyy District Court of Sevastopol, 26/11/2007
10.	27005/08 27/05/2008	Nataliya Volodymyrivna YURCHENKO 02/03/1982 Kozelets	Kozelets Court, 12/11/2007
11.	27421/08 16/05/2008	Vasyl Mykolayovych KRUPA 16/09/1982 Utoropy	Kolomyya Court, 11/01/2006
12.	27897/08 03/06/2008	Igor Fyodorovich PROKOPENKO 10/04/1967 Konotop	Konotop Court, 06/11/2007
13.	42269/08 13/08/2008	Vasiliy Petrovich KOCHURA 12/08/1929 Torez	Torez Court, 31/01/2002
14.	60798/08 26/11/2008	Andriy Igorovych SAMUS 29/10/1963 Kyiv	Kyiv City Court of Appeal, 09/06/2003
15.	23248/09 06/04/2009	Petro Ivanovych MAZHAROV 26/04/1938 Kyiv	Obolonskyy District Court of Kyiv, 13/06/2007
16.	64583/09 17/11/2009	Vladislav Yevgenyevich SHCHEGOLKOV 22/10/1962 Voronezh	Gagarinskyy District Court of Sevastopol, 04/04/2007
17.	21509/10 30/03/2010	Anatoliy Oleksiyovych GERASKO 18/07/1950 Pershotravneve	Higher Administrative Court, 02/04/2008
18.	43535/10 06/07/2010	Ryurik Petrovich RODICHEV 26/02/1937 Krasnyy Luch	Krasnyy Luch Court, 30/05/2007
19.	56208/10 07/09/2010	Lyudmila Vladimirovna SHKARINA 26/03/1956 Vakhrushevo	Krasnyy Luch Court, 15/07/2005

 




APPENDIX 2

(non-enforcement delays less than three years)

 

No.	Application no. and date of introduction	Applicant name, date of birth and place of residence	Relevant domestic decisions
20.	20895/09 08/04/2009	Mykola Ivanovych DMYTRENKO 17/04/1956 Cherkasy	Prydniprovskyy District Court of Cherkasy, 13/08/2007