FIFTH SECTION

CASE OF PYSARSKYY AND OTHERS v. UKRAINE

(Application no. 20397/07 and 164 other applications)

JUDGMENT

STRASBOURG

20 June 2013

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

In the case of Pysarskyy 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 11 June 2013,

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

PROCEDURE

1.  The case originated in 165 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 applicants Mr Volodymyr Adamovych Umanets (application no. 22064/11) and Mr Petro Dmytrovych Neskoromyuk (application no. 22018/11) died. Their son, Mr Stanislav Volodymyrovych Umanets, and sister, Ms Mariya Dmytrivna Morgun, respectively, manifested the wish to pursue the applications on their behalf.

3.  By letters dated 11 February 2013, the Government informed the Court that the applicants Mr Yukhym Mykolayovych Nishchymenko (application no. 14893/11) and Ms Praskovya Ivanivna Kiriyachenko (application no. 20025/11) had died. Copies of the letters were forwarded to the deceased applicants’ addresses, respectively, on 18 and 7 March 2013 by registered post for comments to be submitted by 18 and 8 April 2013. The readers were warned that in the absence of response, the Court would assume that the applicants had died and that no individuals were entitled and wished to pursue the applications. No replies were received.

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

5.  On 20 November 2012 the applications above were communicated to the Government of Ukraine.

6.  The Russian Government, having been informed of their right to intervene in the proceedings in respect of the applicant in application no. 17575/11 (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 final and 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.  THE STANDING OF THE APPLICANTS IN APPLICATIONS Nos. 22064/11 and 22018/11

9.  The Court considers that the applicants’ heirs or next-of-kin in applications nos. 22064/11 and 22018/11 (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).

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

10.  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 set out in Appendix 1

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

12.  The Court notes that the applicant in application no. 14893/11, Mr Yukhym Mykolayovych Nishchymenko, has died and that no heir has requested permission to pursue the application.

13.  It also notes that the applicant in application no. 20025/11, Ms Praskovya Ivanivna Kiriyachenko, has died and that no heir has requested permission to pursue the application.

14.  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.

B.  Applications set out in Appendix 2

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

16.  In their observations with respect to application no. 10520/11 the Government submitted that the applicant complained about lengthy non-enforcement of the judgment of the Barvinkovo Court of 30 April 2010, but the above judgment had never been delivered by that court. The Barvinkovo Court rendered a judgment in the applicant’s favour on 17 May 2010 and the findings of the judgment are different from the findings of the judgment of 30 April 2010. The Government claimed that the application was an abuse of the right of individual application should be declared inadmissible pursuant to Article 35 § 3 (a) of the Convention. The applicant argued that he had obtained a copy of the judgment of 30 April 2010 in the Barvinkovo Court and learned about the judgment of 17 May 2010 from the Government’s observations.

17.  The Court observes that it appears from the case-file materials that the judgment, enforcement of which the applicant seeks to obtain from the Ukrainian authorities, was delivered by the Barvinkovo Court on 17 May 2010. It was apparently a clerical error that the applicant was provided with the judgment dated 30 April 2010. The Court, therefore, rejects the Government’s objection that the application is an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention.

18.  The Court notes that the above complaints of the applicants enumerated in Appendix 2 (see paragraph 10 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.

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

20.  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

21.  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.

22.  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

23.  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.”

24.  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) to award 2,000 euros (EUR) to each of the applicants in Appendix 2. This sum is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses.

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

26.  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 Appendix 1, and to strike them out of its list of cases in accordance with Article 37 § 1 (b) of the Convention;

2.  Decides to join the applications set out in Appendix 2;

3.  Declares admissible the complaints of the applicants, listed in Appendix 2, 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 and declares inadmissible the remainder of the applications;

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 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 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 20 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič
Deputy Registrar President

APPENDIX 1

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

APPENDIX 2

(admissible applications)