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FIFTH
SECTION
CASE OF IVASHCHENKO v. UKRAINE
(Application
no. 22215/04)
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 Ivashchenko 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 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22215/04) 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 Yevgeniy Ivanovich
Ivashchenko (“the applicant”), on 11 June 2004.
- The
applicant was represented by Mr V. Bytchkovkiy. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaitsev.
- On
5 December 2005 the Court decided to give notice of 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 1951 and lives in the town of Krasnyy Lutch,
the Lugansk Region.
- By
two judgments of 17 October 2001 and 27 March 2002, the Krasnyy Lutch
Town Court ordered the Novopavlivska State Mine to pay the applicant
UAH 5,120.50
in salary arrears and to supply him with 11,800 kg of coal,
respectively.
- On
26 November 2001 and 17 May 2002 the Krasnyy
Lutch Town Bailiffs' Service instituted enforcement proceedings
concerning the judgments of 17 October 2001 and 27 March 2002,
respectively.
- The
judgment of 17 October 2001 was partly enforced and the
applicant was paid UAH 3,721.7,
the outstanding debt being UAH 1,398.8.
The judgment of 27 March 2002 remains 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
- The
applicant complained about the State authorities' failure to enforce
the judgments of the Krasnyy Lutch Town Court of 17 October 2001 and
27 March 2002 in full and in due time. He invoked Article 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
Court notes that the Government have not raised any objection as to
the admissibility of the application.
- The
Court considers that 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.
II. MERITS
- In
their observations, 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 to date the judgments of the Krasnyy Lutch Town
Court of 17 October 2001 and 27 March 2002 have remained unenforced
for around four years and eleven months, and four years and seven
months, respectively.
- 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.
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
- The
applicant claimed UAH 12,712.87
in respect of pecuniary damage, which included the amount of the
judgment debt of 17 October 2001 and the sums to which the applicant
has allegedly been entitled due to the non-payment of this debt.
Under the same head, he sought to be provided with 11,800 kg of
coal. The applicant further claimed UAH 12,712.87
in respect of non-pecuniary damage.
- The
Government maintained that the applicant had not substantiated his
claims.
- In
so far as the applicant claimed the amounts of money and coal which
he was awarded under the judgments at issue, the Court considers that
the Government should pay him the outstanding debt under the judgment
of 17 October 2001 and enforce the judgment of 27 March 2002.
- As
to the applicant's claim in respect of non-pecuniary damage, the
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant EUR 2,100
under this head.
B. Costs and expenses
- The
applicant did not submit any 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 of Protocol No. 1;
- Holds
(a) that,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention,
the respondent State is to pay the applicant the judgment debt of 17
October 2001 still owed to him, and EUR 2,100 (two thousand one
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into the currency of the
respondent State at the rate applicable on the date of settlement, as
well as to enforce the judgment of the Krasnyy Lutch Town Court of 27
March 2002;
(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 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
