Application no. 30840/05
by Oleksandr Andriyovych KLYMENKO
The European Court of Human Rights (Fifth Section), sitting on 3 July 2006 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 August 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 and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Oleksandr Andriyovych Klymenko, is a Ukrainian national who was born in 1958 and lives in the town of Dobropillya, Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1996 the applicant instituted civil proceedings in the Dobropillya Town Court against the State-owned Dobropillya Plant of Concrete Pressure Pipes (Добропольский завод железобетонных напорных труб), seeking compensation for uncollected building materials. On 31 October 1996 the court awarded the applicant UAH 12,304.821 (рішення Добропільського міського суду Донецької області). During 1998-2000 the applicant received UAH 1,4692.
By letter of 28 January 2005, the Bailiffs’ Service (Відділ Державної виконавчої служби Добропільського районного управління юстиції) informed the applicant that on 26 March 2001 the Donetsk Regional Commercial Court had ordered the liquidation of the debtor, the debtor’s assets had been partly sold and the rest of the assets could not be sold due to their dilapidated state. The applicant was further informed that the Plant had been destroyed and renewal of its solvency was impossible, and that is why the State Tax Administration had asked the State Committee on Water Management to pronounce the Plant’s liquidation.
To date, the court judgment of 31 October 1996 has not been fully enforced. The outstanding amount of the award is UAH 10,846.223.
The applicant complained under Articles 6 § 1 and 13 of the Convention about the lengthy non-enforcement of the court judgment in his favour. He further complained about a violation of his property rights under Article 1 of Protocol No. 1.
On 17 May 2006 the Court received the following declaration, signed by the applicant:
I, Mr Oleksandr Andriyovych KLYMENKO, 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 5,000 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 5,000 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 29 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 judgment debt still owed to Mr Oleksandr Andriyovych Klymenko, as well as to pay him ex gratia the sum of EUR 5,000 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 5,000 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
KLYMENKO v. UKRAINE DECISION
KLYMENKO v. UKRAINE DECISION