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FIFTH
SECTION
CASE OF BUGAYEV v. UKRAINE
(Application
no. 26168/04)
JUDGMENT
STRASBOURG
29
May 2008
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 Bugayev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Volodymyr
Butkevych,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 6 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26168/04) 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 Sergey Ivanovich
Bugayev (“the applicant”), on 9 June 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
29 November 2006 the Court decided to communicate the
complaints under Articles 6 § 1 and 13 concerning
the non-enforcement of a judgment given 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 1965 and lives in Lysychansk.
- On
18 October 2000 the applicant obtained a judgment of the
Lysychansk Court (Лисичанський
міський
суд
Луганської
області)
against the Lysychansk Thermo-electric Plant (Лисичанська
ТЕЦ), awarding him 13,270
hryvnyas (UAH) in salary arrears and other payments.
- This
judgment was not appealed against, became final and the enforcement
proceedings were instituted to collect the judgment debt.
- On numerous occasions the bailiffs notified the
applicant that they were unable to collect the full amount of the
debt, citing insufficiency of the debtor’s funds and referring
to the bankruptcy proceedings pending against it. They further
explained that, since the State owned more than 25% of the debtor’s
share capital, it was therefore subject to the Law of
29 November 2001 “on the Introduction of a Moratorium
on the Forced Sale of the State Property”.
- On
19 January 2005 the bailiffs took a decision to terminate
the enforcement proceedings, having determined that the applicant had
received the full amount of the judgment debt due to him.
- According
to the applicant, fraction of the amount due to him remained
outstanding.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004)
and Trykhlib v. Ukraine (no. 58312/00, §§
25-32, 20 September 2005).
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that on 3 May 2007, after the case had been
communicated to the respondent Government, the applicant additionally
invoked Articles 14 and 17 of the Convention and Article 1 of
Protocol No. 1 to the facts of the present case.
- In
the Court’s view, the new complaints are not an elaboration of
the applicant’s original complaints to the Court, which had
been communicated to the respondent Government. The Court considers,
therefore, that it is not appropriate now to consider them (see
Piryanik v. Ukraine, no. 75788/01, § 20,
19 April 2005).
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND
13 OF THE CONVENTION
A. Admissibility
- The
applicant complained about the lengthy non-enforcement of the
judgment given in his favour. He invoked Article 13 of the
Convention. The Court finds that the above complaint falls to be
examined also under Article 6 § 1 of the
Convention. The impugned provisions read 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.”
- The Government raised objections regarding exhaustion
of domestic remedies similar to those which the Court has already
dismissed in other cases (see among many other authorities Sokur
v. Ukraine (dec.), no. 29439/02, 16 December 2003).
The Court considers that these objections must be rejected for the
same reasons.
- The Court concludes that the applicant’s
complaints 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 them inadmissible. The Court must
therefore declare them admissible.
B. Merits
- The
Government submitted that the judgment given in the applicant’s
favour had been executed in full and that delay in its enforcement
was not unreasonable in light of the circumstances of the case. There
was, therefore, no breach of the applicant’s Convention rights.
- The
applicant disagreed. He maintained that the delay in payment had
exceeded what may be considered reasonable and that the judgment had
not been fully enforced.
- The
Court recalls that on 19 January 2005 the bailiffs took a
decision to terminate the enforcement proceedings, having determined
that the debtor had fully complied with the judgment. The applicant
presented no materials in support of his allegation concerning the
non-payment of a fraction of the award and was unable to specify the
exact amount of his claim. According to the case-file materials, the
applicant also did not appeal against the bailiffs’ decision.
In these circumstances, the Court does not have reasons to doubt the
Government’s submission and considers that the judgment of
18 October 2000 has been enforced (see e.g., Gavrilenko
v. Ukraine, no. 24596/02, § 18, 20 September
2005).
- On
the other hand, the Court notes that the period of enforcement of the
judgment at issue lasted four years and three months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Sokur v. Ukraine, cited above, §§ 36-37 and
Anatskiy v. Ukraine, no. 10558/03, §§ 21-23,
13 December 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.
- The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant additionally complained that the delay in payment of the
judgment award amounted to a violation of his rights under Articles 1
and 3 of the Convention.
- Having carefully examined these submissions 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 impugned
provisions of 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 submitted that he had sustained pecuniary damage on account
of the lengthy non-enforcement of the judgment given in his favour.
However, he was unable to specify the exact amount of this claim. He
also claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, ruling on an equitable basis, it awards the applicant
EUR 1,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 in legal
fees. He presented a receipt for the above amount signed by
Mr S. Medvedev, an advocate, and a copy of the contract for
his representation.
- The
Government contested the claim.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and they
were reasonable as to quantum. In the present case, regard being had
to the information in its possession and the above criteria, the
Court considers it reasonable to award the sum of EUR 600 in
respect of costs and expenses.
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
and 13 of the Convention concerning the lengthy non-enforcement of
the judgment given in the applicant’s 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 is no need to examine the
complaint under Article 13 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 1,200
(one thousand two hundred euros) in respect of non-pecuniary
damage and EUR 600 (six hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant in
respect of the above amounts, to be converted into the national
currency at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 29 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
