GALADIY proti Ukrajině

FIFTH SECTION

DECISION

Application no. 34907/04
by Teodor Petrovich GALADIY
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 17 September 2004,

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 and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Teodor Petrovich Galadiy, is a Ukrainian national, who was born in 1940 and resides in the town of Novogrodovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.

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

The applicant instituted two sets of proceedings in the Novogrodovskiy Town Court against his former employer, the Rossiya Mining Company (ГОАО шахта «Россия»), for salary arrears. On 16 May 2002 the court awarded the applicant UAH 10,148.97[1] (Решение Новогродовского городского суда Донецкой области). On 3 April 2003 the same court awarded the applicant UAH 13,823.82[2].

These judgments were sent for enforcement to the Novogrodovsky Town Bailiffs’ Service. The applicant stated that in 2004 he received UAH 3,037.65. The rest of the sum remains unpaid.

In February 2003 the Rossiya Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, in December 2003 the enforcement proceedings were transferred to the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции).

The applicant instituted proceedings in the Novogrodovsky Town Court of the Donetsk Region against the Novogrodovsky Town Bailiffs’ Service for failure to enforce the court judgments in his favour. On 11 March 2004 the Town Court rejected the applicant’s claim, finding no fault had been committed by the Bailiffs’ Service. The court stated that the Bailiffs’ Service had acted properly in trying to enforce the judgments of 16 May 2002 and 3 April 2003. However, by a number of judgments of the Commercial Court of the Donetsk Region, the Bailiffs’ Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against it. The court also stated that, according to the Law on the Introduction of a Moratorium on the Forced Sale of Property, on 26 December 2001 a ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital had been introduced.

On 19 July 2004 the Donetsk Region Court of Appeal upheld the judgment of the first instance court of 11 March 2004. The applicant appealed in cassation to the Supreme Court of Ukraine. Proceedings are still pending.

In June 2004 the applicant instituted another set of proceedings in the Selidovskiy Town Court against the Selidovskiy Town Bailiffs’ Service for failure to enforce the court judgments in his favour. On 22 November 2004 the court found against the applicant. On 29 March 2005 the Donetsk Region Court of Appeal upheld this judgment. The applicant appealed against these judgments in cassation. On 27 April 2005 the Selidovskiy Town Court provided the applicant with a time-limit until 16 May 2005 to submit his cassation appeal in compliance with procedural requirements provided by law. The parties did not provide any further information about these proceedings.

COMPLAINTS

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

THE LAW

On 19 April 2006 the Court received the following declaration, signed by the applicant:

“I, Mr Teodor Petrovych Galadiy, note that the Government of Ukraine are prepared to pay the judgments debts still owed to me, as well as to pay me ex gratia the sum of EUR 1,300 (one thousand three hundred euros) 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 1,300 (one thousand three hundred euros) 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 10 May 2006 the Court received the following declaration from the Government:

“I, Yuriy ZAYTSEV, Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to pay the judgments debts still owed to Mr Teodor Petrovych Galadiy, as well as to pay him ex gratia the sum of EUR 1,300 (one thousand three hundred euros) 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 1,300 (one thousand three hundred euros) 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] Around 2,169.50 EUR

[2] Around 2,484.69 EUR