FIFTH SECTION

CASE OF KONONOVA AND OTHERS v. UKRAINE

(Application no. 11770/03 and 89 other applications)

JUDGMENT

STRASBOURG

6 June 2013

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

In the case of Kononova 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 14 May 2013,

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

PROCEDURE

1.  The case originated in 90 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, one Russian national (application no. 56464/07) and companies based in Ukraine. Their details are specified in the appended tables (“the applicants”).

2.  In applications nos. 35771/07, 28061/08, 28071/08, 46953/08, 25260/09, 26397/09, 20032/10, 22620/10, 25288/10 the applicants died in course of the proceedings before the Court. Their next-of-kin expressed a wish to pursue the applications.

3.  Mr Andriy Salnikov (application no. 28061/08) and Ms Diana Salnikova (application no. 28071/08) are brother and sister. They are both heirs of their deceased father and challenge the lengthy non-enforcement of the same judgment adopted in favour of their father.

4.  The Government are represented by their Agent, Mr Nazar Kulchytskyy.

5.  The applications listed in Appendices 1 and 2 were communicated to the Government on various dates in 2003-2011.

6.  The Russian Government, having been informed of their right to intervene in the proceedings in respect of the applicant in application no. 56464/07 (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

7.  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 enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.

8.  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

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

II.  THE SECOND APPLICANT IN APPLICATION No. 47387/06

10.  The second applicant in application no. 47387/06, Ms Lyubov Rusanova, complains about delay in payment of the salary caused by her former employer (State agency) and about the outcome of the proceedings before the domestic courts. The applicant has however failed to establish that any salary was outstanding, and has in any event failed to show that she appealed against the sole decision in the Court’s file. The Court finds that this part of application no. 47387/06 must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III.  THE STANDING OF THE APPLICANTS IN APPLICATIONS Nos. 35771/07, 28061/08, 28071/08, 46953/08, 25260/09, 26397/09, 20032/10, 22620/10, 25288/10

11.  The Court considers that in applications listed in paragraph 2 (see above) the next-of-kin of the deceased applicants have standing to continue the proceedings in their stead (see, among other authorities, Mironov v. Ukraine, no. 19916/04, § 12, 14 December 2006).

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

12.  The applicants complained about the lengthy non-enforcement of the decisions given in their favour 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.

13.  The Court notes that the above complaints (see paragraph 12 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.

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

15.  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.

V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

16.  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.

17.  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.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  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.”

19.  Bearing in mind its previous decisions 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 with the exception of applications nos. 28061/08 and 28071/08) and EUR 1,500 to each applicant in the other applications (the applications tabulated in Appendix 2 and applications nos. 28061/08 and 28071/08). These sums are to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

20.  The Court finds that the applicants in applications nos. 28061/08 and 28071/08 are to be awarded 1,500 euros (EUR) each, as, being heirs to their deceased father’s estate in equal parts, they both challenge the non‑enforcement of the same judgment adopted in favour of their late father (see § 3 above).

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

22.  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.

23.  The Court finally recalls that in the case of Kharuk it reiterated that it is an international judicial authority contingent on the consent of the States signatory to the Convention, that its principal task is to secure respect for human rights, rather than compensate applicants’ losses minutely and exhaustively, and that in cases involving many similarly situated victims a unified approach may be called for (see Kharuk v. Ukraine cited above, §§ 23, 24).

24.  The Court considers that still further standardisation of awards in these cases is called for, and intends, in future judgments dealing with standard non-enforcement complaints against Ukraine, to award a single lump sum to each applicant, regardless of the non-enforcement period involved.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to join the applications;

2.  Declares application no. 47387/06 inadmissible insofar as it is made by Ms Lyubov Rusanova;

3.  Declares the complaints of the applicants 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;

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

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

6.  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 (with the exception of applications nos. 28061/08 and 28071/08) and EUR 1,500 (one thousand five hundred euros)

(i)  to each applicant or his or her estate in the applications tabulated in Appendix 2 and

(ii)  in applications nos. 28061/08 and 28071/08

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 6 June 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 three years and more)

APPENDIX 2

(non-enforcement delays less than three years)