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FIFTH
SECTION
CASE OF
V. S. v. UKRAINE
(Application
no. 13400/02)
JUDGMENT
STRASBOURG
30
November 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of V.S. v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
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
deliberated in private on 6 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 13400/02)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian national, Mr
V.S., on 12 November 2001. The President of the Chamber acceded to
the applicant's request not to have his name disclosed (Rule 47 §
3 of the Rules of Court).
- The
applicant was represented by his wife Mrs L. S., a schoolteacher. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs V. Lutkovska.
- On
2 July 2003 the Court decided to communicate the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1953 and lives in the village
of Vladimirivka, the Donetsk region, Ukraine.
- The
applicant is an employee of the Pivdennodonbaska State Mine
(hereinafter - the SMP Mine). On 24 June 1996 he suffered an
industrial injury.
- In
October 1998 the applicant instituted proceedings in the
Volnovakha City Court against the SMP Mine seeking compensation for
the injury. On 16 June 2000 the court found in part for the
applicant.
- On
6 December 2000 the Presidium of the Donetsk Regional Court
allowed the protest lodged by the Deputy President of the
Donetsk Regional Court and quashed the decision of 16 June 2000.
The case was remitted for a fresh consideration to the Vugledar City
Court.
- On
7 June 2001 the Vugledar City Court found that the
applicant had been injured due to the fault of the SMP Mine and
ordered it to pay him UAH 37,465.41
in compensation and UAH 800
of costs and expenses (рішення
Вугледарського
міського суду
Донецької
області).
The court also awarded the applicant a monthly allowance of
UAH 162.57
in compensation for loss of earnings for
the period of 8 May – 8 September 2001.
- On
6 August 2001 the Vugledar City Bailiffs' Service
instituted enforcement proceedings in respect of the judgment of
7 June 2001.
- According
to the Government, the judgment was fully enforced in instalments:
during the periods of April – December 2002 and August –
December 2003 the applicant received a total of UAH 10,227,
and in 2004 he received the remaining amount of the judgment
debt (UAH 27,238).
The last payment took place in May 2004. The applicant was also paid
UAH 800 for his legal expenses.
- On
1 June 2004 the Bailiffs' Service terminated the enforcement
proceedings as the judgment of 7 June 2001 was enforced in
full. The applicant never challenged the Bailiffs' decisions of 1
June 2004. Nevertheless, he maintains that the debtor still owes him
UAH 515.27.
- In
July 2004 the applicant lodged a new claim with the Voroshilovskiy
District Court of Donetsk against the State Enterprise “Donetsk
Coal Energy Company” (Державне
підприємство
„Донецька
вугільна енергетична
компанія”),
seeking compensation for the substantial delay in the enforcement of
the judgment of 7 June 2001. Within the course of the proceedings the
court appointed a forensic accounting expertise to calculate the
amount of compensation due to the applicant. In their conclusions of
14 July 2005 the experts mentioned, inter alia, that, out of
the total amount of the judgment award, UAH 515.27 remained unpaid.
- On
1 November 2005 the court partly allowed the applicant's claim as,
according to the domestic legislation then in force, untimely paid
salary had to be recalculated if a price index had increased for
more than 1 % during the relevant period of delay in
payment. The court also found that the applicant had sustained moral
damage as the result of the lengthy non-enforcement of the judgment
in his favour. The court awarded the applicant the total of UAH
8,609.88,
including UAH 500
in compensation for moral damage.
- On
28 November 2005 the Voroshilovskiy District Bailiffs' Service of
Donetsk instituted enforcement proceedings in respect of the judgment
of 1 November 2005.
- On
6 December 2005 the enforcement proceedings were terminated in
accordance with the Law of Ukraine “On measures to ensure the
stable operation of fuel and energy sector enterprises” (Закон
України „Про
заходи, спрямовані
на забезпечення
сталого
функціонування
підприємств
паливно-енергетичного
комплексу»).
16. The
judgment of 1 November 2005 remained unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that after the communication of the case to the
respondent Government the applicant introduced a new complaint about
the non-enforcement of the judgment in his favour of 1 November 2005.
19. In this respect the
Court notes that this complaint concerned proceedings brought before
the national judicial authorities with a view to obtaining, inter
alia, compensation for the delay in the enforcement of the
judgment of 7 June 2001. In the Court's view, there is
a link between these two proceedings which is, however, is not
sufficiently close to bring the new complaint as such into the scope
of the original application, lodged more than four years earlier, on
which the parties have commented (see, Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005). The Court considers,
therefore, that the scope of the present case before the Court is
limited to that original complaint. Nevertheless, the Court will bear
in mind these further factual developments when examining the present
case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about the length of the non-enforcement of the
judgment of 7 June 2001. He invoked Article 6 § 1
of the Convention and Article 1 of Protocol No. 1.
These Articles provide, insofar as relevant, as follows:
Article 6 § 1
“In the
determination of his civil rights and obligations ... everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest ....”
A. Admissibility
1. The applicant's victim status
- The
Government considered that the applicant could no longer claim to be
a victim of a violation of the Convention as he had received full
payment of the judgment debt. They submitted copies of documents in
confirmation, including certificates with the dates and amounts of
the instalments paid to the applicant. The applicant challenged this
contention, stating that an amount of UAH 515.27 (around EUR 85.88)
from the judgment of 7 June 2001 remained unpaid. In this
respect he referred to the results of the forensic accounting
expertise (see paragraph 12). The Government maintained that their
information was accurate.
- Having
regard to the above submissions, the Court notes that, by not having
challenged the Bailiffs' decisions of 1 June 2004 confirming the full
enforcement of the judgment of 7 June 2001, the applicant
has implicitly acknowledged this fact and cannot now raise it before
this Court (see, Bitkivska v. Ukraine, no. 5788/02,
§ 17, 4 October 2005). Furthermore, in his claim of July
2004 lodged with the Voroshilovskiy District Court of Donetsk he
challenged only delay in the enforcement proceedings and did not
claim the allegedly unpaid sum. The Court therefore concludes that
the enforcement proceedings were completed in May 2004, as evidenced
by the official documentation.
- The
Court further notes that although the judgment of 1 November 2005
recognised delays and ordered payment of, inter alia,
compensation for these delays, it remained non-enforced and cannot,
therefore, be considered in these circumstances as having de facto
some remedial effect.
- The
Court considers therefore that the applicant may still claim to be a
victim of an alleged violation of the rights guaranteed by Article 6
§ 1 of the Convention in relation to the period during which the
judgment remained unenforced (see Voytenko v. Ukraine, no.
18966/02, § 35, 29 June 2004).
2. Non-exhaustion of domestic remedies
25. The
Government raised objections regarding the applicant's exhaustion of
domestic remedies similar to those which the Court has already
dismissed in a number of judgments see, Romashov v. Ukraine,
no. 67534/01, §§ 23-32, 27 July 2004).
The Court considers that the present objections must be rejected for
the same reasons.
3. Conclusion
- The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention about the delay in the enforcement of the judgment
of the Vugledar City Court of 7 June 2001 is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible. For the same
reasons, the applicant's complaint under Article 1 of
Protocol No. 1 cannot be declared inadmissible.
B. Merits
- The Government maintained that the length of the
enforcement proceedings was not excessive and the Bailiffs' Service
performed all necessary actions. The Government contended that the
applicant's entitlement to the award was not disputed and he was not
deprived of his property. The Government further maintained that the
applicant had at his disposal effective remedies explicitly provided
for by domestic legislation in order to challenge the non-enforcement
of the court judgment given in his favour.
- The
applicant disagreed. He stated that the remedies invoked by the
Government could not be effective in his case since no fault for the
delay in the enforcement proceedings could be attributed to the
bailiffs.
- The Court notes that the judgment in the applicant's
favour remained unenforced for three years and eleven months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases like the present application (see, Sokur v. Ukraine,
no. 29439/02, §§ 30-37, 26 April 2005; Shmalko
v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004).
- Having examined all the materials submitted to it, the
Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case.
- There has, accordingly, been a violation of
Article 6 § 1 of the Convention and of
Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained under Article 2 of the Convention about the lack
of adequate safety measures at the SMP Mine.
In
the light of all the material in its possession, and insofar as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claims UAH 300,000
in respect of pecuniary damage caused by violation of Article 6 §
1 and Article 1 of Protocol No.1, and UAH 200,000
in respect of non-pecuniary damage.
- The Government consider these claims groundless. They
further contended that the finding of a violation would constitute
sufficient just satisfaction in the case.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. As to the applicant's claim in respect of
non-pecuniary damage - UAH 200,000 - the Court considers this sum
excessive. The Court also notes that on 1 November 2005 the
Voroshilovskiy District Court of Donetsk awarded the applicant EUR 83
in compensation for moral damage caused by the lengthy
non-enforcement of the judgment in his favour; however this judgment
remained unenforced. Making its assessment on an equitable basis as
required by Article 41 of the Convention, the Court awards the
applicant the sum of EUR 1,100 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head within the set
time-limit; the Court therefore makes no award in this respect.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No 1 to the Convention
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No.1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,100 (one
thousand one hundred euros) in respect of non-pecuniary damage;
(b) that the above amount shall be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable;
(c) that
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;
5. Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 30 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
