BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF LISNYY v. UKRAINE
(Application
no. 4204/03)
JUDGMENT
STRASBOURG
25
October 2007
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 Lisnyy 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,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4204/03) 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 Volodymyr Dmytrovych
Lisnyy (“the applicant”), on 18 January 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
15 November 2006 the Court decided to communicate the
complaints concerning the delay in the enforcement of the judgments
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 1936 and lives in Lviv.
- In
1981 the applicant was convicted of speculating in gold and sentenced
to a term of imprisonment. In 1992 his conviction was annulled as
unlawful. Subsequently the applicant instituted civil proceedings,
seeking various kinds of compensation for his unlawful conviction and
punishment.
A. Proceedings concerning compensation for the loss of
income
- On
24 February 1998 the Khust Court (Хустський
районний
суд
Закарпатської
області)
awarded the applicant 3,350.55 hryvnyas (UAH)
against the Ministry of Finance (“the Ministry”;
Міністерство
фінансів України)
in compensation for his loss of income while in detention.
- This
judgment became final and on 3 June 1998 the bailiffs
instituted enforcement proceedings. They submitted the enforcement
writ to the Ministry of Finance, which redirected it to the State
Treasury (Державне
Казначейство
України).
- On
18 November 2003 the enforcement writ was returned to the
applicant unenforced.
B. Proceedings concerning compensation for the
confiscated gold
- On
13 May 1999 the Khust Court awarded the applicant
UAH 7,281.70
against the Khust State Treasury Department (“the Khust
Treasury”; Відділ
Державного
казначейства
в Хустському
районі Закарпатської
області)
in compensation for the gold confiscated from him following his
conviction. This decision became final.
- On
12 November 2002 the Khust Treasury informed the applicant
that it could not make the payment without the command of the
bailiffs. In connection with this, the Khust Treasury had transferred
the applicant's request for enforcement and a copy of the judgment to
the bailiffs and had requested the Khust Court to transfer the
enforcement writ thereto.
- On
5 March 2003 the Khust Court informed the applicant that it
had never issued the enforcement writ as the applicant personally had
never requested the court to do so.
- The
judgment of 13 May 1999 remains unenforced.
C. Proceedings for compensation of moral damage
- On
2 April 2002 the Lychakivsky District Court of Lviv awarded
the applicant UAH 2,000
against the State Treasury in moral damages
for a delay in the enforcement of the judgment of 24 February 1998.
- This
decision became final in October 2002 and on 9 December 2002
the enforcement proceedings were instituted. On several occasions the
Treasury informed the applicant that the judgment award could not be
paid on account of the lack of budgetary allocations.
- On
26 January 2004 the Lviv Regional Court of Appeal (“the
Regional Court”; Апеляційний
суд Львівської
області)
gave the applicant, who sought to obtain a higher amount of
compensation, leave to appeal against the judgment of 2 April 2002
out of time.
- On
15 March 2004 the Regional Court, following the applicant's
appeal, reviewed the facts of the case in their entirety and quashed
the judgment of 2 April 2002. The court rejected the
applicant's claims against the Treasury as lacking statutory basis
under domestic law. On 25 September 2006 the Supreme Court
rejected the applicant's request for leave to appeal in cassation.
D. Other proceedings
- The
applicant made several unsuccessful attempts to institute civil
proceedings against various authorities, seeking compensation for the
delays in the enforcement of the judgments in his favour.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Volosyuk v.
Ukraine (no. 60712/00, §§ 20-24, 29 June
2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
OF THE CONVENTION
- The
applicant complained about the State authorities' failure to enforce
the judgments of 24 February 1998, 13 May 1999
and 2 April 2002 in due time. He invoked Article 1 of
Protocol No. 1, which provides, insofar as relevant, as
follows:
“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 or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The Government contended that the applicant had failed
to institute enforcement proceedings in respect of the judgment of
13 May 1999 and had therefore not exhausted the remedies
available to him under the national law. They submitted no
observations on the admissibility of the applicant's complaints
concerning the non-enforcement of the other judgments in issue.
- The applicant disagreed.
- The
Court finds that it is inappropriate to require an individual who has
obtained judgment against the State at the end of legal proceedings
to then bring enforcement proceedings to obtain satisfaction (see,
for example, Metaxas v. Greece, no. 8415/02, § 19,
27 May 2004; Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 198, ECHR 2006-... and Lizanets v.
Ukraine, no. 6725/03, § 43, 31 May 2007). It
therefore rejects the Government's objection.
- The Court notes that the applicant's complaints
concerning the non-enforcement of the judgments are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
- In
their observations on the merits of the case, the Government
contended that there had been no violation of Article 1 of
Protocol No. 1.
- The
applicant disagreed.
- The
Court notes that the judgments of 24 February 1998 and
13 May 1999 have remained unenforced for the periods
exceeding nine and eight years, respectively. The period of
non-enforcement of the judgment of 2 April 2002 was, from
the date, on which this judgment became final and until it was
quashed, one year and five months.
- The
Court recalls that it has already found violations of Article 1 of
Protocol No. 1 in a number of similar cases (see, for
instance, Volosyuk v. Ukraine, cited above,
§§ 37-38, and Androsov v. Russia,
no. 63973/00, §§ 55-56, 6 October 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 1 of Protocol No. 1.
II. OTHER COMPLAINTS
- Additionally,
the applicant invoked Article 17 of the Universal Declaration of
Human Rights and Article 9 § 5 of the International
Covenant on Civil and Political Rights, complaining about the delay
in the enforcement of the judgments and about inadequate compensation
for the damage sustained by him on account of the non-enforcement as
well as the conviction.
- The
Court recalls that it has examined the lengthy non-enforcement of the
judgments in the applicant's favour under Article 1 of
Protocol No. 1 (see paragraphs 26-29 above).
- The
remainder of the applicant's complaints are outside the competence of
the Court and should therefore be rejected pursuant to Article 35 §§
3 and 4 of the Convention (see Kucherenko v. Ukraine,
no. 27347/02, § 28, 15 December 2005).
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 the unsettled debts due to him by the judgments of
24 February 1998 and 13 May 1999 as well as
UAH 12,652.50 (EUR 1,975) in inflation losses and
UAH 5,868.28 (EUR 916) in statutory default interest by way
of pecuniary damage. In support of his claim for inflation losses,
the applicant presented a certificate of
the Lviv Department of the State Committee for Statistics (Головне
управління
статистики
у Львівській
області),
showing the inflation rates in the reference period. Additionally,
the applicant claimed EUR 100,000 in non-pecuniary damage.
- The
Government contested these claims.
- The
Court recalls that the principle underlying the provision of just
satisfaction is that the applicant should as far as possible be put
in the position he would have enjoyed had the violation found by the
Court not occurred (Kingsley v. the United Kingdom [GC], no.
35605/97, § 40, ECHR 2002-IV). Turning to the instant case, the
Court observes that the judgments given in the applicant's favour
have not been enforced and that the adequacy of the compensation
would be diminished if the debt were to be paid without reference to
various circumstances liable to reduce its value, such as an extended
delay in enforcement (see e.g. Reynbakh v. Russia,
no. 23405/03, § 35, 29 September 2005).
- Taking
into account the applicant's submissions as regards the inflation
rates during the period of non-enforcement and the fact that the
Government did not dispute the applicant's method of calculation, the
Court finds that the Government should pay the applicant the
outstanding judgments debt as well as EUR 1,975 in inflation
losses by way of compensation for pecuniary damage. The Court does
not discern any causal link between the violation found and the
default interest alleged and considers that the applicant remains
entitled to raise the relevant claim in the course of domestic
proceedings. The Court therefore dismisses the claim for default
interest.
- The
Court further takes the view that the applicant has suffered some
non-pecuniary damage as a result of the violation found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant the sum of EUR 2,600
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 15,000 (EUR 2,340) for the costs
and expenses incurred before the domestic courts and before the
Court. He presented no supporting documents.
- The
Government submitted that the applicant had failed to substantiate
his claim.
- The Court reiterates that, in order for costs and
expenses to be included in an award under Article 41, it must be
established that they were actually and necessarily incurred in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention and were reasonable as to quantum (see,
among many other authorities, Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII).
- The
Court considers that these requirements have not been met in the
instant case. It notes that the applicant's submissions do not
specify his costs incurred in connection with the violation found.
However, the applicant must have incurred some costs and expenses in
connection with his Convention complaints. Regard being had to the
information in its possession and to the above considerations, the
Court finds it reasonable to award the applicant EUR 50 for
costs and expenses (see e.g., Belanova v. Ukraine,
no. 1093/02, § 41, 29 November 2005).
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 complaint concerning Article 1
Protocol No. 1 admissible and the remainder of the
application inadmissible;
- 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, the outstanding
debts under the judgments of 24 February 1998 and
13 May 1999 as well as EUR 4,625 (four thousand six
hundred and twenty-five euros) in respect of inflation losses,
non-pecuniary damage, costs and expenses, to 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;
(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 25 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
