Case of European Court of Human Rights, October 12, 2017 (case BURMYCH AND OTHERS v. UKRAINE)

Defense:UKRAINE
Resolution Date:October 12, 2017

GRAND CHAMBER

CASE OF BURMYCH AND OTHERS v. UKRAINE

(Applications nos. 46852/13 et al.)

JUDGMENT

(Striking out)

This version was rectified on 1 December 2017

under Rule 81 of the Rules of Court.

STRASBOURG

12 October 2017

This judgment is final but it may be subject to editorial revision.

In the case of Burmych and Others v. Ukraine,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Guido Raimondi, President,Angelika Nußberger,Ganna Yudkivska,Helena Jäderblom,Luis López Guerra,András Sajó,Ledi Bianku,Işıl Karakaş,Vincent A. De Gaetano,Julia Laffranque,André Potocki,Paul Mahoney,Aleš Pejchal,Johannes Silvis,Valeriu Griţco,Iulia Motoc,Georges Ravarani, judges,and Roderick Liddell, Registrar,

Having deliberated in private on 26 May and 25 August 2016 and 26 June 2017,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

  1. The case originated in five applications (nos. 46852/13, 47786/13, 56605/13, 54125/13and 3653/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Ms Lidiya Ivanivna Burmych, Mr Grygoriy Yaremchuk, Mr Oleg Varava and Mr Yuriy Neborachko as well as a private joint-stock company, Izolyatsiya, PAT, registered in Donetsk, Ukraine (“the applicants”), on 9 July 2013, 16 July 2013, 8 August 2013, 16 August 2013 and 11 December 2013, respectively.

  2. The first four applicants were represented respectively by Ms T.O. Nevmerzhytska, a lawyer practising in Zhytomyr, Ukraine, Mr S.V. Galapyuk, a lawyer practising in Zhytomyr, Ukraine, Mr I.V. Zybachynskyy, a lawyer practising in Kyiv, Ukraine and Ms O.O. Dmytrychenko, a lawyer practising in Kremenchuk, Ukraine. The fifth applicant was represented by Mr A. Taranovskyy, a lawyer practicing in Kyiv, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.

  3. The applicants complained of non-enforcement or delayed enforcement of domestic court decisions given in their favour. They alleged a violation of their rights guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The first and fifth applicants raised a further complaint under Article 13 of the Convention as regard the lack of effective remedy in domestic law.

  4. Between 10 December 2013 and 20 January 2015 the applications were communicated to the Government.

  5. On 8 December 2015, after having consulted the parties, a Chamber of the Fifth Section of the Court, composed of Judges Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Helena Jäderblom and Aleš Pejchal, decided to relinquish jurisdiction in favour of the Grand Chamber in the above cases, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court).

  6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.

  7. Following the Grand Chamber’s decision of 16 March 2016 not to hold a hearing, the applicants and the Government each filed written observations on the admissibility and merits of the applications referred to in paragraph 1 above.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

    1. Background

  8. Introduction

  9. The applications in the present case concern prolonged non‑enforcement of domestic final judicial decisions. They raise issues similar to those examined in the pilot judgment in the case of Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, 15 October 2009; hereinafter “Ivanov” or “the Ivanov judgment”). They are part of a group of 12,143 Ivanov-type follow-up applications (hereinafter also referred to as “Ivanov‑type cases”).

  10. Accordingly, before providing a description of the relevant facts and proceeding to the examination of the applicants’ Convention grievances in the present case, the Court considers it necessary to present the procedure hitherto adopted in applications concerning non‑enforcement or delayed enforcement of domestic court decisions in Ukraine.

  11. Prior to the adoption of the Ivanov pilot judgment the Court had dealt with a number of cases concerning the non-enforcement of domestic court decisions in Ukraine. The first decision on this issue was rendered in the case of Kaysin and Others v. Ukraine ((friendly settlement), no. 46144/99, 3 May 2001). Even though the case was settled by the parties and the applicants received the sums indicated in the friendly settlement agreement, the general issue of non‑enforcement remained unresolved largely owing to the lack of funds of the State entities, State-owned or State‑controlled debtors (hereinafter “State debtors”). Subsequent cases concerning non‑enforcement or delayed enforcement of domestic court decisions related to payments of salaries and allowances to military servicemen, employees of the mining companies, judges, school teachers, debts of municipalities or State hospitals, State-owned banks, State-owned enterprises and the Cabinet of Ministers (see, among many other examples, the judgments in the cases of Voytenko v. Ukraine, no. 18966/02, 29 June 2004, Romashov v. Ukraine, no. 67534/01, 27 July 2004, Zubko and Others v. Ukraine, nos. 3955/04 and 3 others, ECHR 2006‑VI (extracts), Belanova v. Ukraine, no. 1093/02, 29 November 2005, Kucherenko v. Ukraine, no. 27347/02, 15 December 2005, Shmalko v. Ukraine, no. 60750/00, 20 July 2004, and Poltorachenko v. Ukraine, no. 77317/01, 18 January 2005).

  12. The pilot judgment in the Ivanov case

  13. As a result of an increasing number of applications concerning prolonged non-enforcement of domestic decisions in Ukraine, the Court decided to have recourse to the pilot judgment procedure and selected the case of Yuriy Nikolayevich Ivanov v. Ukraine (see paragraph 8 above) as representative of this problem. For the facts of this case reference is made to paragraphs 8-20 of the pilot judgment.

  14. In its Interim Resolution of 6 March 2008, the Committee of Ministers had already recognised the existence of a structural problem (see Ivanov, cited above, § 38, see also paragraph 124 below).

  15. In its pilot judgment of 15 October 2009 the Court found that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 because of the non-enforcement or delayed enforcement of final judicial decisions. The Court noted that the delays had been caused by a combination of factors, including the lack of budgetary funds, the bailiffs’ omissions and shortcomings in the national legislation, as a result of which Mr Ivanov and other applicants in a similar situation were unable to have the judgments enforced (see Ivanov, cited above, §§ 83-84). All those factors had been within the control of the Ukrainian authorities, and thus Ukraine was fully responsible for such non-enforcement (ibid. § 85). The Court further found that there had been no remedy at national level satisfying the requirements of Article 13 of the Convention in respect of Mr Ivanov’s complaints about the non‑enforcement of the judgment in his favour (ibid. §§ 66-70).

  16. Under Article 46, the Court held that the Ivanov case concerned two recurring problems: (a) the prolonged non-enforcement of final domestic decisions and (b) the lack of an effective domestic remedy to deal with it. These problems lay behind the violations of the Convention found by the Court since 2004 in over 300 cases concerning Ukraine. The Ivanov case demonstrated that these problems had remained without a solution despite the Court’s clear rulings urging Ukraine to take appropriate measures to resolve those issues (see Ivanov, cited above, §§ 73, 74 and 83).

  17. In view of the fact that approximately 1,400 similar applications against Ukraine were pending before the Court at that time (ibid. § 86), the Court held in the relevant operative provisions of its judgment as follows:

    “...

  18. ... that the [violations of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention found in the case] originated in a practice incompatible with the Convention which consists in the respondent State’s recurrent failure to comply in due time with domestic decisions for the enforcement of which it is responsible and in respect of which aggrieved parties have no effective domestic remedy;

  19. ... that the respondent State must set up without delay, and at the latest within one year from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, an effective domestic remedy or combination of such remedies capable of securing adequate and sufficient redress for the non-enforcement or delayed enforcement of domestic decisions, in line with the Convention principles as established in the Court’s case-law;

  20. ... that the respondent State must grant such redress, within one year from the date on which the judgment becomes final, to all applicants whose applications pending before the Court were communicated to the Government under Rule 54 § 2 (b) of the Rules of Court before the delivery of the present judgment or will be communicated further to this judgment and concern arguable complaints relating solely to the prolonged non-enforcement of domestic decisions for which the State was responsible, including where complaints alleging a lack of effective remedies in respect of such non-enforcement are also raised;

  21. ... that pending the adoption of the above measures, the Court will adjourn, for one year from the date on which the judgment becomes final, the proceedings in all cases in which the applicants raise arguable complaints relating solely to the prolonged non-enforcement of domestic decisions for which the State is responsible, including cases in which complaints alleging a lack of effective remedies in respect of such non-enforcement are also raised, without...

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