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FIFTH
SECTION
CASE OF VILIKANOV v. UKRAINE
(Application no. 19189/04)
JUDGMENT
STRASBOURG
7
December 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 Vilikanov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting 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
deliberated in private on 13 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19189/04) 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 Viktor Dmitriyevich
Vilikanov (“the applicant”), on 21 February 2004.
- The applicant was represented by Mr V. Bychkovskiy from
Miusinsk. The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
- On 8 November 2005 the Court decided to
communicate the complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 concerning the
non-enforcement of the judgment in the applicant's favour 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 1954 and lives in Krasnyy Luch, the Lugansk
region.
- In 2001 the applicant instituted civil proceedings in
the Krasnyy Luch Court (Краснолуцький
міський суд
Луганської
області)
against his employer, the OJSC “Krasnyy Luch” (“the
Company,” ВАТ “Красний
Луч”),
for salary arrears and other payments. At the material time the State
owned 100% of the Company's shares. The
Company was therefore subject to the Law of 29 November 2001
“on the Introduction of a Moratorium on the Forced Sale of
Property.”
- On
17 January 2002 the Krasnyy Luch Court awarded the
applicant UAH 1,435.27.
This judgment was not appealed against and became final.
- On
5 March 2002 the Krasnyy Luch Bailiffs'
Service (Відділ
Державної
виконавчої
служби Краснолуцького
міського управління
юстиції) initiated
the enforcement proceedings in relation to this judgment.
- The
judgment was enforced on 28 February 2005.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in
Sokur v. Ukraine (no. 29439/02, § 17-22,
26 April 2005).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgment of the Krasnyy Luch Court of 17 January 2002
in due time. He invoked Articles 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which
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 ....”
I. ADMISSIBILITY
- The
Government submitted no observations on the admissibility of the
applicant's complaints.
- The
Court finds that the applicant's complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the
Convention about the delay in the enforcement of the judgment of
17 January 2002 raise issues of fact and law under the
Convention, the determination of which requires an examination on the
merits. It finds no ground for declaring these complaints
inadmissible. The Court must therefore declare them admissible.
II. MERITS
- In
their observations on the merits of the applicant's complaints, the
Government contended that there had been no violation of
Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1. The delay in the enforcement of the
judgment in the applicant's favour had been caused by the Company's
difficult financial situation and the considerable number of
enforcement proceedings taken against it.
- The
applicant disagreed.
- The
Court notes that the judgment of the Krasnyy Luch Court of
17 January 2002 remained unenforced for three years and one
month.
- The Court recalls that it has already found violations
of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 in a number of
similar cases (see, for instance, Sokur v. Ukraine, cited
above, §§ 36-37 and Sharenok v. Ukraine, no.
35087/02, §§ 37-38, 22 February 2005).
- Having
examined all the material in its possession, 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. 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
20. The applicant claimed UAH 5,473
(EUR 809.55) in respect of pecuniary and non-pecuniary damage.
- The
Government maintained that the applicant has not substantiated his
claims.
22. The Court does not discern any
causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. However, the Court
considers that the applicant must have sustained non-pecuniary
damage, and awards him EUR 800 in this respect.
B. Costs and expenses
- The applicant did not submit any separate claim under
this head. The Court therefore makes no award.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of
Article 1 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 according to
Article 44 § 2 of the Convention, EUR 800
(eight hundred euros) in respect of non-pecuniary damage to be
converted into the currency of the respondent State at the rate
applicable on the date of settlement, plus any tax that may be
chargeable;
(b) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
