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FIFTH
SECTION
CASE OF Yuriy IVANOV v.
UKRAINE
(Application
no. 40132/02)
JUDGMENT
STRASBOURG
14
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 Yuriy Ivanov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting 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,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40132/02) 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 Yuriy Gennadyevich
Ivanov (“the applicant”), on 25 October 2002.
- The
applicant was represented by Mr P. Kukta. The Ukrainian Government
(“the Government”) were represented their Agent,
Mrs V. Lutkovska.
- On
24 March 2005 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 1971 and lives in the town of Dniprodzerzhynsk.
- In
2002 the applicant instituted proceedings in the Labour Disputes
Commission against the Agrofos State Enterprise (the “ASE”),
seeking recovery of salary arrears and compensation. By decision of
26 February 2002, the Labour Disputes Commission allowed
the applicant's claims and ordered the ASE to pay him UAH 3,429.09
in salary arrears and other payments.
- On
18 July 2002 the applicant instituted proceedings in the
Bagaliyskyy District Court of Dniprodzerzhynsk against the ASE,
seeking recovery of salary arrears and compensation. On 23
August 2002 the court left the applicant's claim without
consideration for failure to attend the hearings, of which the
applicant had been informed in advance. The applicant did not appeal
against this decision.
- On
5 September 2002 the applicant lodged similar claims with
the same court against the ASE. By decision of 26 September 2002,
the court awarded the applicant UAH 3,842.86
in salary arrears and other payments.
- On
10 April and 1 October 2002 the Bagaliyskyy
District Bailiffs' Service of Dniprodzerzhynsk instituted enforcement
proceedings concerning the decisions of 26 February and
26 September 2002, respectively.
- On
5 August 2002 the Ministry of Fuel and Energy of Ukraine
liquidated the ASE and established the Joint Stock Company
“Dniprovskyy Zavod Mineralnyh Dobryv” (the “DZMD”)
– in which the State held 40% of the share capital – as
the ASE's successor.
- On
24 March 2003 the applicant lodged with the Bagaliyskyy
District Court a criminal law complaint against the Bailiffs'
Service. By letter of 2 April 2003, the President of the
court denied jurisdiction to consider the applicant's complaint.
- On
2 February 2004 the Bailiffs' Service informed the
applicant that the decisions in his favour had not been executed due
to the substantial number of enforcement proceedings against the DZMD
and that the procedure for the forced sale of assets belonging to the
debtor company had been blocked by the Law on the Introduction of a
Moratorium on the Forced Sale of Property of 29 November 2001.
The Bailiffs' Service further informed the applicant that the DZMD's
property has been in a tax lien since 1 March 2004.
- On
7 April 2004 the Commercial Court of the Dnipropetrovsk
Region commenced bankruptcy proceedings against the DZMD. According
to the Government, these proceedings are still pending.
- On
29 April 2004 the applicant instituted civil proceedings in
the Bagaliyskyy District Court against the Bailiffs' Service, seeking
compensation for failure to enforce the decisions in his favour. On
29 November 2004 the court rejected the applicant's claim.
The applicant did not appeal against this decision.
- On
2 September 2004 the decision of 26 February 2002
was enforced in full. The decision of 26 September 2002
remains to a large extent (UAH 1,059)
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. ADMISSIBILITY
A. Complaint about the length of the non-enforcement of
the decisions of 26 February and 26 September 2002
- The
applicant complained about the State authorities' failure to enforce
the decision of the Labour Disputes Commission of 26 February 2002
and the decision of the Bagaliyskyy District Court of
Dniprodzerzhynsk of 26 September 2002 in due time and, in
respect of the latter decision, in full. He invoked Articles 6 § 1
and 13 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 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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 ....”
- The
Government contended that the applicant had not exhausted domestic
remedies as he had neither appealed against the decision of
29 November 2004, nor lodged a request with the Commercial
Court of the Dnipropetrovsk Region to be included in the list of the
DZMD's creditors in the course of bankruptcy proceedings against the
latter. The Government therefore proposed that the application be
declared inadmissible or struck out of the Court's list of cases.
- The
Court recalls that it has already dismissed the Government's
analogous contentions in similar cases (see, for instance,
Garkusha v. Ukraine, no. 4629/03, §§ 18-19,
13 December 2005) and finds no reason to reach a different conclusion
in the present case.
- The
Court concludes that this part of the application raises issues of
fact and law under the Convention, the determination of which
requires an examination of the merits. It finds no ground for
declaring it inadmissible.
B. Other complaints
- The
applicant further complained in substance under Article 6 § 1 of
the Convention about the unfairness, outcome and length of the
proceedings against the Bailiffs' Service.
- In
so far as the applicant complained about the outcome and unfairness
of the impugned proceedings, the Court observes that he did not
appeal to the Dnipropetrovsk Regional Court of Appeal against the
decision of 29 November 2004. The applicant accordingly
cannot be regarded as having exhausted all the domestic remedies
available to him under Ukrainian law. As to the applicant's complaint
about the length of these proceedings, the Court notes that they
lasted around seven months. This period does not exceed a reasonable
time with the meaning of Article 6 § 1 of the
Convention and, therefore, this complaint is manifestly ill-founded.
It follows that this part of the application must be rejected
pursuant to Article 35 §§ 1, 3 and 4 of the
Convention.
II. MERITS
- In
their observations on the merits of the applicant's complaints about
the length of the non-enforcement of the decisions of 26 February
and 26 September 2002, the Government put forward arguments
similar to those in the cases of Romashov v. Ukraine and
Voytenko v. Ukraine, contending that there had been no
violation of either Article 6 § 1 of the
Convention or Article 1 of Protocol No. 1 (see
Romashov, cited above, § 37, and Voytenko v. Ukraine,
no. 18966/02, 29 June 2004, § 37).
- The
applicant disagreed.
- The
Court notes that the decision of the Labour Disputes Commission of
26 February 2002 remained unenforced for around two years
and five months, while the decision of the Bagaliyskyy Distrcit Court
of Dniprodzerzhynsk of 26 September 2002 has remained, to
date, unenforced for more than four years.
- 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 raising issues similar to the present application (see, for
instance, Romashov, cited above, §§ 42-46, and
Voytenko, cited above, §§ 53-55).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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 Article 1 of
Protocol No. 1.
- The
Court does not find it necessary in the circumstances to examine the
same complaint under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
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.”
- The
applicant did not submit a claim for just satisfaction within the
time-limit fixed by the Court. Accordingly, the Court makes no such
award (Rule 60 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant's complaints under
Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1 about the delay in the
enforcement of the decisions in his favour 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;
- Holds that it is not necessary to examine the
applicant's complaint under Article 13 of the Convention.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
