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Cite as: [2006] ECHR 1005

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FIFTH SECTION

CASE OF V. S. v. UKRAINE

(Application no. 13400/02)

JUDGMENT

STRASBOURG

30 November 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 V.S. 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 6 November 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 13400/02) 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 V.S., on 12 November 2001. The President of the Chamber acceded to the applicant's request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).

The applicant was represented by his wife Mrs L. S., a schoolteacher. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.

On 2 July 2003 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 1953 and lives in the village of Vladimirivka, the Donetsk region, Ukraine.

The applicant is an employee of the Pivdennodonbaska State Mine (hereinafter - the SMP Mine). On 24 June 1996 he suffered an industrial injury.

In October 1998 the applicant instituted proceedings in the Volnovakha City Court against the SMP Mine seeking compensation for the injury. On 16 June 2000 the court found in part for the applicant.

On 6 December 2000 the Presidium of the Donetsk Regional Court allowed the protest lodged by the Deputy President of the Donetsk Regional Court and quashed the decision of 16 June 2000. The case was remitted for a fresh consideration to the Vugledar City Court.

On 7 June 2001 the Vugledar City Court found that the applicant had been injured due to the fault of the SMP Mine and ordered it to pay him UAH 37,465.41¹ in compensation and UAH 800² of costs and expenses (рішення Вугледарського міського суду Донецької області). The court also awarded the applicant a monthly allowance of UAH 162.57³ in compensation for loss of earnings for the period of 8 May – 8 September 2001.

On 6 August 2001 the Vugledar City Bailiffs' Service instituted enforcement proceedings in respect of the judgment of 7 June 2001.

According to the Government, the judgment was fully enforced in instalments: during the periods of April – December 2002 and August – December 2003 the applicant received a total of UAH 10,227⁴, and in 2004 he received the remaining amount of the judgment debt (UAH 27,238⁵). The last payment took place in May 2004. The applicant was also paid UAH 800 for his legal expenses.

On 1 June 2004 the Bailiffs' Service terminated the enforcement proceedings as the judgment of 7 June 2001 was enforced in full. The applicant never challenged the Bailiffs' decisions of 1 June 2004. Nevertheless, he maintains that the debtor still owes him UAH 515.27⁶.

In July 2004 the applicant lodged a new claim with the Voroshilovskiy District Court of Donetsk against the State Enterprise “Donetsk Coal Energy Company” (Державне підприємство „Донецька вугільна енергетична компанія”), seeking compensation for the substantial delay in the enforcement of the judgment of 7 June 2001. Within the course of the proceedings the court appointed a forensic accounting expertise to calculate the amount of compensation due to the applicant. In their conclusions of 14 July 2005 the experts mentioned, inter alia, that, out of the total amount of the judgment award, UAH 515.27 remained unpaid.

On 1 November 2005 the court partly allowed the applicant's claim as, according to the domestic legislation then in force, untimely paid salary had to be recalculated if a price index had increased for more than 1 % during the relevant period of delay in payment. The court also found that the applicant had sustained moral damage as the result of the lengthy non-enforcement of the judgment in his favour. The court awarded the applicant the total of UAH 8,609.88¹, including UAH 500² in compensation for moral damage.

On 28 November 2005 the Voroshilovskiy District Bailiffs' Service of Donetsk instituted enforcement proceedings in respect of the judgment of 1 November 2005.

On 6 December 2005 the enforcement proceedings were terminated in accordance with the Law of Ukraine “On measures to ensure the stable operation of fuel and energy sector enterprises” (Закон України „Про заходи, спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу»).

16.  The judgment of 1 November 2005 remained 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.  SCOPE OF THE CASE

The Court notes that after the communication of the case to the respondent Government the applicant introduced a new complaint about the non-enforcement of the judgment in his favour of 1 November 2005.

19.  In this respect the Court notes that this complaint concerned proceedings brought before the national judicial authorities with a view to obtaining, inter alia, compensation for the delay in the enforcement of the judgment of 7 June 2001. In the Court's view, there is a link between these two proceedings which is, however, is not sufficiently close to bring the new complaint as such into the scope of the original application, lodged more than four years earlier, on which the parties have commented (see, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). The Court considers, therefore, that the scope of the present case before the Court is limited to that original complaint. Nevertheless, the Court will bear in mind these further factual developments when examining the present case.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

The applicant complained about the length of the non-enforcement of the judgment of 7 June 2001. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These Articles 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 ....”

A.  Admissibility

1.  The applicant's victim status

The Government considered that the applicant could no longer claim to be a victim of a violation of the Convention as he had received full payment of the judgment debt. They submitted copies of documents in confirmation, including certificates with the dates and amounts of the instalments paid to the applicant. The applicant challenged this contention, stating that an amount of UAH 515.27 (around EUR 85.88) from the judgment of 7 June 2001 remained unpaid. In this respect he referred to the results of the forensic accounting expertise (see paragraph 12). The Government maintained that their information was accurate.

Having regard to the above submissions, the Court notes that, by not having challenged the Bailiffs' decisions of 1 June 2004 confirming the full enforcement of the judgment of 7 June 2001, the applicant has implicitly acknowledged this fact and cannot now raise it before this Court (see, Bitkivska v. Ukraine, no. 5788/02, § 17, 4 October 2005). Furthermore, in his claim of July 2004 lodged with the Voroshilovskiy District Court of Donetsk he challenged only delay in the enforcement proceedings and did not claim the allegedly unpaid sum. The Court therefore concludes that the enforcement proceedings were completed in May 2004, as evidenced by the official documentation.

The Court further notes that although the judgment of 1 November 2005 recognised delays and ordered payment of, inter alia, compensation for these delays, it remained non-enforced and cannot, therefore, be considered in these circumstances as having de facto some remedial effect.

The Court considers therefore that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by Article 6 § 1 of the Convention in relation to the period during which the judgment remained unenforced (see Voytenko v. Ukraine, no. 18966/02, § 35, 29 June 2004).

2.  Non-exhaustion of domestic remedies

25.  The Government raised objections regarding the applicant's exhaustion of domestic remedies similar to those which the Court has already dismissed in a number of judgments see, Romashov v. Ukraine, no. 67534/01, §§ 23-32, 27 July 2004). The Court considers that the present objections must be rejected for the same reasons.

3.  Conclusion

The Court concludes that the applicant's complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of the Vugledar City Court of 7 June 2001 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. For the same reasons, the applicant's complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible.

B.  Merits

The Government maintained that the length of the enforcement proceedings was not excessive and the Bailiffs' Service performed all necessary actions. The Government contended that the applicant's entitlement to the award was not disputed and he was not deprived of his property. The Government further maintained that the applicant had at his disposal effective remedies explicitly provided for by domestic legislation in order to challenge the non-enforcement of the court judgment given in his favour.

The applicant disagreed. He stated that the remedies invoked by the Government could not be effective in his case since no fault for the delay in the enforcement proceedings could be attributed to the bailiffs.

The Court notes that the judgment in the applicant's favour remained unenforced for three years and eleven months.

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 like the present application (see, Sokur v. Ukraine, no. 29439/02, §§ 30-37, 26 April 2005; Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004).

Having examined all the materials submitted to it, 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. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

The applicant complained under Article 2 of the Convention about the lack of adequate safety measures at the SMP Mine.

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 rights and freedoms set out in 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 claims UAH 300,000¹ in respect of pecuniary damage caused by violation of Article 6 § 1 and Article 1 of Protocol No.1, and UAH 200,000² in respect of non-pecuniary damage.

The Government consider these claims groundless. They further contended that the finding of a violation would constitute sufficient just satisfaction in the case.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As to the applicant's claim in respect of non-pecuniary damage - UAH 200,000 - the Court considers this sum excessive. The Court also notes that on 1 November 2005 the Voroshilovskiy District Court of Donetsk awarded the applicant EUR 83 in compensation for moral damage caused by the lengthy non-enforcement of the judgment in his favour; however this judgment remained unenforced. Making its assessment on an equitable basis as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 1,100 in respect of non-pecuniary damage.

B.  Costs and expenses

The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect.

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 of the Convention and Article 1 of Protocol No 1 to the Convention 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 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 1,100 (one thousand one hundred euros) in respect of non-pecuniary damage;

(b)  that the above amount shall 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;

(c)  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;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 30 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President