SHULIKO proti Ukrajině

FIFTH SECTION

DECISION

Application no. 11784/05
by Vitaliy Fyodorovich SHULIKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 6 June 2006 as a Chamber composed of:

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

Having regard to the above application lodged on 16 March 2005,

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 regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vitaliy Fyodorovich Shuliko, is a Ukrainian national, who was born in 1946 and resides in the town of Gorlovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev, and Mrs I. Shevchuk, Head of the Office of the Government Agent before the European Court of Human Rights.

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

In October 1999 the applicant instituted proceedings in the Kalininskiy District Court against his employer, the joint-stock enterprise “Remmash” (ОАО Горловский завод «Реммаш»), for salary arrears. On 12 November 1999 the court awarded the applicant UAH 3,596.40[1] (Решение Калининского районного суда г.Горловки Донецкой области).

On 6 December 1999 the Kalininskiy District Bailiffs’ Service (Калининский отдел Государственной исполнительной службы Украины Горловского городского управления юстиции) initiated enforcement proceedings. However, the judgment was not enforced.

By letter of 1 March 2005, the Donetsk Department of Justice informed the applicant that the enforcement is complicated by the introduction of the ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital (the Law on the Introduction of a Moratorium on the Forced Sale of Property) on 26 December 2001. The State owns 51% of the share capital in the debtor enterprise. On 22 October 2002 the bankruptcy proceedings were instituted against the debtor enterprise, which is now in liquidation.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the lengthy non-enforcement of the judgment in his favour. He further complained of a violation of his property rights under Article 1 of Protocol No.1.

THE LAW

On 3 April 2006 the Court received the following declaration, signed by the applicant:

“I, Mr Vitaliy Fyodorovich SHULIKO, 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 3,000 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 3,000 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 [decision taken 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.

This declaration is made in the context of a friendly settlement which the Government and I have reached.”

On 21 February 2006 the Court received the following declaration from the Government:

“I, Iryna SHEVCHUK, Head of the Office of the Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay the judgment debt still owed Mr Vitaliy Fyodorovich Shuliko, as well as to pay him ex gratia the sum of EUR 3,000 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 3,000 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 [decision taken 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 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

[1]. At the material time EUR 687.41.