European Court of Human Rights

 

 

FIFTH SECTION

 

 

 

 

 

CASE OF KYSELYOVA AND OTHERS v. UKRAINE

 

(Application no. 6155/05 and 22 other applications)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

9 January 2014

 

 

 

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




In the case of Kyselyova 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 3 December 2013,

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

PROCEDURE

1.  The case originated in 23 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 and companies based in Ukraine. Their details are specified in the appended tables (“the applicants”).

2.  The Government were represented by their Agent, Mr Nazar Kulchytskyy.

3.  The applications listed in the Appendix to the present judgment were communicated to the Government on various dates between 2008 and 2011.

4.  On various dates the Government submitted to the Court a number of unilateral declarations aimed at resolving the non-enforcement issues raised in three applications. 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 requests.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5.  On the dates set out in the appended table domestic courts and a labour disputes commission delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.

6.  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

7.  In view of the similarity of the applications set out in the Appendix in terms of the principal legal issues 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

8.  The applicants complained about the lengthy non-enforcement of the decisions given in their favour, as specified in the Appendix, and about the lack of the effective domestic remedies in respect of those complaints. Expressly or in substance they relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

9.  The Court notes that the above complaints (see paragraph 8 above) 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.

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

11.  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 the 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.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

12.  In applications nos. 26359/06, 21116/07, 47023/07, 15730/08, 21181/08, 21701/08, 46205/08 and 33523/09 the applicants raised complaints concerning non-enforcement of other domestic court decisions. Having examined the parties’ submissions and the available material, the Court decided to reject these complaints as manifestly ill-founded as whole, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

13.  Some of the applicants also raised other complaints under the Convention, which the Court has examined carefully. 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

14.  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.”

15.  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. This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

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

17.  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 set out in the Appendix;

 

2.  Declares the complaints of the applicants listed in the Appendix 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 their 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 within three months the respondent State is to enforce the domestic decisions in the applicants’ favour which remain enforceable, and is to pay EUR 2,000 (two thousand euros) to each applicant (or his or her estate) listed in the Appendix 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 9 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Stephen Phillips                                                          Boštjan M. Zupančič
     Deputy Registrar                                                                  President




APPENDIX

 

No.	Application no. and date of introduction	Applicant name date of birth	Relevant domestic decision
1.	6155/05 26/01/2005	Zhanna Mykhaylivna KYSELYOVA 30/07/1972	Kamyanets-Podilskyy Court, 03/06/2003 (in the light of Kamyanets-Podilskyy Court, 19/04/2002 and 09/10/2001)
2.	38540/05 12/10/2005	1) Zoya Dmitriyevna PANCHUK 07/10/1939   2) Irina Vladimirovna KRINITSYNA 12/051960   3) Sergey Vasilyevich LAKURIN 10/08/1965   4) Irina Igorevna LAKURINA 14/02/1965   5) Tatyana Nikolayevna LESHEFINA 11/12/1954   6) Lyubov Afanasyevna MASHKINA 24/06/1952   7) Lyubov Andreyevna MOSKALENKO 02/03/1947   8) Marina Petrovna VALIKOVA 11/06/1980   9) Sergey Anatolyevich VOLOVIKOV 27/06/1965   10) Svetlana Viktorovna VOLOVIKOVA 07/06/1977   11) Ivan Borisovich ZUBKOV 07/08/1946   12) Lyudmila Danilovna GALINSKAYA 06/01/1956   13) Olga Vasilyevna LEBEDEVA 01/01/1949	1) Zoya Dmitriyevna PANCHUK Torez Court, 25/05/2004   2) Irina Vladimirovna KRINITSYNA Torez Court, 25/05/2004   3) Sergey Vasilyevich LAKURIN Torez Court, 25/05/2004   4) Irina Igorevna LAKURINA Torez Court, 25/05/2004   5) Tatyana Nikolayevna LESHEFINA Torez Court, 25/05/2004   6) Lyubov Afanasyevna MASHKINA Torez Court, 25/05/2004   7) Lyubov Andreyevna MOSKALENKO Torez Court, 25/05/2004   8) Marina Petrovna VALIKOVA Torez Court, 25/05/2004   9) Sergey Anatolyevich VOLOVIKOV Torez Court, 25/05/2004   10) Svetlana Viktorovna VOLOVIKOVA Torez Court, 25/05/2004   11) Ivan Borisovich ZUBKOV Torez Court, 25/05/2004   12) Lyudmila Danilovna GALINSKAYA Shakhtarsk Court, 27/05/2004   13) Olga Vasilyevna LEBEDEVA Shakhtarsk Court, 27/05/2004
3.	2468/06 10/12/2005	Natalya Ivanovna ABAKUMOVA 09/03/1969	Krasnograd Court, 05/06/2007, as amended by the Kharkiv Regiolnal Court of Appeal on 14/08/2007
4.	11534/06 06/03/2006	Anna Alekseyevna POLYAKOVA 01/01/1942   Yevgeniy Nikolayevich PIKULITSKIY 29/10/1939	Applicant 1: 1) Slovyansk Court, 31/07/2003   Applicant 2: 2) Slovyansk Court, 13/12/2002
5.	26359/06 15/06/2006	Dmitriy Iosifovich TURLAKOV 01/05/1943	Kupyansk Court, 17/02/2006
6.	12326/07 01/03/2007	Andrey Ivanovich KUPRIYENKO 01/01/1948	1) Khmilnyk Court, 11/08/1997 in the light of the same court’s judgment of 22/09/2005   2) Khmilnyk Court, 23/01/2001 in the light of the same court’s judgment of 22/09/2005
7.	21116/07 27/04/2007	Grygoriy Grygorovych BODNAR 05/10/1947	Kamyanets-Podilskyy Court, 17/10/2005, quashed by the Khmelnytskyy Regional Court of Appeal on 11/02/2008
8.	44334/07 27/09/2007	Tamara Mykolayivna DENYSYUK 10/07/1953	Gagarinskyy District Court of Sevastopol, 12/01/2006
9.	47023/07 13/10/2007	Anatoliy Vladimirovich RUDENKO 01/02/1949	Krasnyy Luch Court, 14/04/2004
10.	6509/08 23/01/2008	Svetlana Vasilyevna ZHUKOVA 06/09/1962   Dmitriy Olegovich ZHUKOV 07/09/1986	Selydiv Court, 28/12/2004
11.	11597/08 26/02/2008	Volodymyr Mykolayovych MELETSKYY 28/08/1951	1) Kozelets Court, 18/04/2005   2) Prydniprovskyy District Court of Cherkasy, 28/02/2007
12.	15730/08	Viktor Nikolayevich VELICHKO 11/08/1964	Teplodar Court, 04/04/2007
13.	21181/08 19/04/2008	Aleksandr Grigoryevich POPKOV 12/11/1944	1) Slovyansk Court, 24/11/2000   2) Slovyansk Court, 26/02/2001   3) Slovyansk Court, 10/10/2001   4) Slovyansk Court, 23/11/2004   5) Slovyansk Court, 12/12/2007   6) Slovyansk Court, 11/11/2008
14.	21701/08 21/04/2008	KARINA, TOV	Lviv Commercial Court, 07/12/2006
15.	37616/08 19/07/2008	Vyacheslav Semyonovich USOV 31/05/1941	1) Zhovti Vody Court, 06/10/2000   2) Zhovti Vody Court, 10/06/05 as amended by the Dnipropetrovsk Regional Court of Appeal on 25/01/2006
16.	38364/08 31/07/2008	KORTEKS, VAT	Zhytomyr Regional Commercial Court, 17/10/2005
17.	46205/08 12/09/2008	Yaroslav Vasilyovych BOYCHUK 15/08/1948	1) Verkhovyna Court, 05/07/2004 as amended by the Ivano-Frankivsk Regional Court of Appeal on 30/09/2004   2) Verhovyna Court, 26/03/2007
18.	59374/08 20/11/2008	Gulyam Khabib AKBARI 07/01/1959	Illichivskyy District Court of Mariupol, 14/12/2006
19.	18906/09 25/03/2009	Viktor Leonidovich KRYTSYN 22/09/1954	Sudak Court, 16/01/2006 as amended by judgment of the Crimea Court of Appeal on 20/09/2006
20.	31367/09 02/06/2009	Vladimir Leonidovich KISHCHENKO 01/10/1953	Novogrodivka Court, 6/05/2006
21.	33523/09 05/06/2009	Vitaliy Ivanovich DEMCHENKO 29/11/1953	Labour Disputes Commission, 17/12/1997
22.	35246/10 12/05/2010	Igor Petrovych GAVRYLYUK 23/06/1952   Olena Petrivna KRYLAS 22/09/1952	1 applicant: 1) Zhytomyr Circuit Administrative Court, 20/03/2008,   2) Zhytomyr Circuit Administrative Court, 07/10/2008   3) Bogunskyy District Court of Zhytomyr, 02/11/2009   2 applicant: 1) Zhytomyr Circuit Administrative Court, 24/03/2008   2) Zhytomyr Circuit Administrative Court, 23/02/2009   3) Korolyovskyy District Court of Zhytomyr, 19/01/2010
23.	42850/10 21/07/2010	Andriy Petrovych KITURA 02/10/1943	Sykhivskyy District Court of Lviv, 19/10/2007