Makrushin and Others v. Ukraine

FIFTH SECTION

Application no. 18586/02 by Sergey Viktorovich MAKRUSHIN AND OTHERS against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 September 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 1 April 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

All the applicants (see Appendix I) who were born at different dates between 1936 and 1960 are Ukrainian nationals, who reside in Kupryanskiy District, the Kharkiv region, Ukraine. The applicants were represented by Mrs Aleksandra Nikolayevna Gyrya from Kovsharovka, Ukraine.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On unspecified dates each of the applicants, save the eleventh and twelfth, instituted separate civil proceedings in the Kupyanskyi Local Court against the Joint Stock Company “Kupyanskyi Liteinyi Zavod” (the “KLZ”) – in which the State held at least 28 % of the share capital – to recover unpaid salary. The eleventh and twelfth applicants filed applications with the labour disputes commission of the KLZ to recover unpaid salary from the KLZ. On the dates mentioned below (see Appendix I) the court and the labour disputes commission ( hereinafter – the LDC) allowed the applicants’ claims.

On 25 November 2001 the applicants’ representative was informed by a letter from the Bailiffs’ Service that the decisions in their favour were not executed due to the substantial number of enforcement proceedings against the debtor and that the procedure of forced sale of the debtor’s assets had been suspended in accordance with the Order of the President of Ukraine of 23 May 2001.

On 29 August 2001 The Kharkiv Regional State Administration informed the applicants’ representative that pursuant to a decision of the Kharkiv Regional Commercial Court of 4 July 2001, the debtor had been declared bankrupt.

The above court judgments and LDC decisions have not been enforced.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention of the failure to execute the court’s and Labour Disputes Commission’s decisions in their favour.

THE LAW

On 14 March 2007 the Court received declarations signed by the applicants in the following form:

“I [name], note that the Government of Ukraine are prepared to pay the judgment debt still owed to me, as well as to pay me ex gratia the sum of EUR [sum] with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

The sum of EUR [sum] will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the judgment by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Ukraine in respect of the facts of this application. I declare that this constitutes a final resolution of the case.”

On 22 February 2007 the Court received the declarations from the Government in the following form:

“I, Yuriy ZAYTSEV, Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay the judgment debt still owed to [name], as well as to pay [him/her] ex gratia the sum of EUR [sum] with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

The sum of EUR [sum] will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the judgment by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Government’s declarations in the cases of the eleventh and twelfth applicants referred specifically to the decision being of the LDC.

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen Registrar President

Appendix

Applicant

Date of birth

The date of the court or LDC decision

The sum

awarded (UAH)

The sum

awarded (EUR)

Friendly settlement sum (EUR)

1

Mr Sergey Viktorovych Markushin

1960

15 May 2001

4,514.73

973.46

1,800

2

Mrs Vera Mikhailovna Salabay

1958

25 May 2001

2,726.59

587.90

1,800

3

Mr Viktor Mikhailovych Chumak

1936

unspecified

1,431.72

307.32

1,600

4

Mr Anatoliy Viktorovych Grigorov

1938

26 April 2001

2,255.37

465.91

1,800

5

Mrs Liudmila Petrovna Dan’ko

1947

2 September 1997 and

26 April 2001

731.00

and 2541.05

392.48 (USD) and 523.73

2,600

6

Mrs Lidiya Nikolayevna Zolotonog

1942

13 August 2001

1,699.78

361.31

1,800

7

Mrs Evgeniya Dmytrievna Schiraya

1942

21 June 2001

2,439.09

530.3

1,800

8

Mrs Galina Mikhailovna Ivakhnova

1956

4 July 2001

1,435.23

314.21

1,800

9

Mr Viktor Petrovych Vodolazskiy

1942

17 September 2001

2,998.00

614.29

1,600

10

Mrs Valentina Ivanovna Zaykova

1939

unspecified

1,554.81

321.95

1,600

11

Mrs Olga Vasylievna Ivaschenko

1947

unspecified

689.00

141.67

1,600

12

Mrs Nadezhda Maksimovna Severinova

unspecified

16 March 2001

873.00

179.12

2,600

13

Mrs Liubov Leonidovna Osadchaya

1955

13 August 2001

2,457.36

522.35

1,800

14

Mrs Nina Grigoryevna Kotenko

1953

20 June 2001

1,293.00

280.87

1,800

15

Mrs Valentina Vyacheslavovna Fedorova

unspecified

25 June 2001

1,145.36

248.57

1,800

16

Mrs Anna Vasylievna Grigorova

1942

3 May 2001

3,378.75

698.68

1,800

17

Mrs Nadezhda Grigoryevna Yerema

1953

25 June 2001

510.37

110.76

1,800

18

Mr Leonid Leonidovych Rysov

1939

23 April 2001

1,769.90

362.52

1,800

19

Mrs Aleksandra Ivanovna Schiraya

1945

21 June 2001

3,497.12

760.04

1,800