FIFTH SECTION

CASE OF SHTABOVENKO AND OTHERS v. UKRAINE

(Application no. 22722/07 and 99 other applications)

JUDGMENT

STRASBOURG

25 April 2013

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

In the case of Shtabovenko 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 2 April 2013,

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

PROCEDURE

1.  The case originated in 100 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, a company based in Ukraine and a Russian national, whose details are specified in the appended tables (“the applicants”).

2.  The applicant Mr Viktor Andriyovych Bondar died (application no. 13890/09). His wife, Ms Nadiya Yefremivna Bondar, manifested a wish to pursue the application on his behalf.

3.  By letter dated 19 December 2012, the Government informed the Court that the applicant Mr Vladimir Shabodinovich Khamzatov (application no. 33262/10) had died. A copy of the letter was forwarded to the deceased applicant’s address on 19 February 2013 by registered post for comments to be submitted by 11 March 2013. The reader was warned that in the absence of response, the Court would assume that the applicant had died and that no individual was entitled and wished to pursue the application. No reply was received.

4.  By letter dated 27 October 2012 the applicant Ms Olena Georgiyivna Mykhaylova (application no. 475/11) informed the Court that she wanted to withdraw the application since the judgment rendered in her favour had been fully enforced.

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

6.  On 4 October 2012 the applications above were communicated to the Government of Ukraine.

7.  The Russian Government, having been informed of their right to intervene in the proceedings in respect of the applicant in application no. 63882/09 (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

8.  On the dates set out in the appended tables domestic courts and labour disputes commissions 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.

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

THE LAW

I.  THE STANDING OF THE APPLICANT IN APPLICATION No. 13890/09

10.  The Court considers that the applicant’s wife in application no. 13890/09 (see paragraph 2 above) has standing to continue the proceedings in the applicant’s stead (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006).

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

11.  The applicants complained 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. They relied on, expressly or in substance, Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

A.  Applications tabulated in Appendices 1 and 2

12.  The Court considers that the applications tabulated in Appendices 1 and 2 should be joined, given their common factual and legal background.

1.  Applications tabulated in Appendix 1

13.  In their observations the Government submitted that the debtor in respect of the judgments indicated in Appendix 1 was a private company. However, between 28 November 2005 and 30 July 2010 the Fuel and Energy (Complex Enterprises) Register included the debtor in the procedure for recovery of debts pursuant to the 2005 Act on measures designed to ensure the stable functioning of fuel and energy enterprises and all enforcement proceedings in respect of it were frozen. Therefore, the Government bore responsibility for the debtor’s actions from the moment when the applicants’ judgments became final and until it was excluded from the Register. They argued that those periods could not be considered excessive. As regards the period after 30 July 2010, the Government, referring to the Court’s case law (see Dovgal v. Ukraine (dec.), no. 50726/06, 20 October 2009), maintained that the State was responsible for the non-enforcement in the applicant’s favour only insofar as the State Bailiffs’ Service was involved, while the applicants had not challenged before the domestic courts the Bailiffs’ alleged inactivity in the enforcement of their judgments. Given the above the Government claimed that the applications should be declared inadmissible as manifestly ill-founded.

14.  Given its findings in previous similar cases against Ukraine (see, for instance, Andreyenko and Others v. Ukraine (dec.), no. 22312/03, 19 June 2007 and Gapeyev v. Ukraine (dec.), no. 21659/06, 17 November 2009), the Court considers that these applications must be declared inadmissible pursuant to Article 35 § 3 (a) of the Convention.

2.  Applications tabulated in Appendix 2

15.  The Government submitted in their observations that the debtor in respect of the judgments specified in Appendix 2 was a private legal entity. They reiterated that the State’s positive obligation to enforce the judgments against a private entity extends no further than the involvement of State bodies in the enforcement proceedings. They claimed that the applicants’ complaints are manifestly ill-founded given that they failed to challenge the actions of the State Bailiffs’ Service.

16.  The Court observes that the parties’ submissions did not disclose that there were any factors, attributable to the State, which impeded or blocked the enforcement of the judgments at issue for an excessively long period of time. In any event it appeared after the communication of the applications to the respondent Government that on 5 July 2007, that is more than six months before the applications were lodged with this Court, the debtor had been finally liquidated without legal successor due to bankruptcy and excluded from the State companies register. These applications must, therefore, be declared inadmissible as manifestly ill-founded pursuant to Article 35 § 3 (a) of the Convention.

B.  Applications tabulated in Appendix 3

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

18.  The Court notes that the applicant in application no. 33262/10, Mr Vladimir Shabodinovich Khamzatov, has died and that no heir has requested permission to pursue the application.

19.  It also notes that the applicant in application no. 475/11, Ms Olena Georgiyivna Mykhaylova, informed the Court that she did not intend to pursue the application since the judgment, rendered in her favour had been fully enforced.

20.  In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the applications. In view of the above, it is appropriate to strike the applications out of the list.

C.  Applications tabulated in Appendices 4 and 5

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

22.  The Court notes that the above complaints of the applicants tabulated in Appendices 4 and 5 (see paragraph 11 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.

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

24.  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 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

25.  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.

26.  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

27.  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.”

28.  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 4) and EUR 1,500 to each applicant in the other applications (the applications tabulated in Appendix 5). These sums are to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

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

30.  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 tabulated in Appendices 1 and 2;

2.  Declares inadmissible the applications indicated in Appendices 1 and 2;

3.  Decides to join the applications tabulated in Appendix 3;

4.  Decides to strike the applications enumerated in Appendix 3 out of its list of cases in accordance with Article 37 § 1 (b) of the Convention;

5.  Decides to join the applications tabulated in Appendices 4 and 5;

6.  Declares the complaints of the applicants listed in Appendices 4 and 5, 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;

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

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

9.  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 4 and EUR 1,500 (one thousand five hundred euros) to each applicant or his or her estate in the applications tabulated in Appendix 5 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 25 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Stephen Phillips Boštjan M. Zupančič
 Deputy Registrar President

APPENDIX 1

(inadmissible applications)

APPENDIX 2

(inadmissible applications)

APPENDIX 3

(applications struck out of the Court’s list of cases)

APPENDIX 4

(non-enforcement delays three years and more)

APPENDIX 5

(non-enforcement delays less than three years)