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VIKTOR TARASENKO v. UKRAINE - 38762/03 [2006] ECHR 1049 (7 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1049.html
Cite as:
[2006] ECHR 1049
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FIFTH
SECTION
CASE OF VIKTOR TARASENKO v. UKRAINE
(Application
no. 38762/03)
JUDGMENT
STRASBOURG
7 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 Tarasenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 13 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38762/03) 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 Viktor
Ivanovych Tarasenko (“the applicant”), on
22 November 2003.
The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
On
15 March 2005 the Court decided to communicate the complaints under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
concerning the lengthy non-enforcement of the judgment 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 1954
and resides in the town of Novovolynsk, Volyn region, Ukraine.
In
November 2000 the applicant instituted proceedings in the
Novovolynskyy Town Court against his former employer, State Mining
Company No.1 “Novovolynska” (Шахта
№1 „Нововолинська”),
for salary arrears and other payments due to him. On 11
December 2000 the court awarded the applicant 34,207.10
Ukrainian hryvnias (“UAH”) in compensation for industrial
disease and in other payments (Рішення
Нововолинського
міського
суду Волинської
області).
On
12 January 2001 the Novovolynskyy District Bailiffs' Service (Відділ
Державної
виконавчої
служби Нововолинського
міського управління
юстиції) initiated
the enforcement proceedings.
By
the letters of 19 February and 10 April 2002, and 23 December
2003, the Novovolynskyy District Bailiffs' Service informed the
applicant that it was not possible to sell the debtor's property as,
according to the Law on the Introduction of a Moratorium on the
Forced Sale of Property, on 26 December 2001, a ban on the
forced sale of assets belonging to undertakings in which the State
holds at least 25% of the share capital had been introduced. It also
stated that the debtor's property was in a tax lien.
In
2001-2004 the court judgment was enforced by instalments, the final
amount being paid on 6 December 2004.
II. RELEVANT DOMESTIC LAW
9. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
Relying
on Article 13 of the Convention, and Article 1 of Protocol No. 1 the
applicant complained about the lengthy
non-enforcement of the judgment given in his favour. These Articles
provide, insofar as relevant, as follows:
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
Court finds that the applicant's complaint about the lengthy
non enforcement of the judgment given in his favour should also
require examination under Article 6 § 1 of the Convention which
reads 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. ...”
A. Admissibility
The
Government raised objections regarding the applicant's victim status
and exhaustion of domestic remedies similar to those which the Court
has already dismissed in the case of Romashov v. Ukraine (no.
67534/01, §§ 23-33, 27 July 2004). The Court
considers that the present objections must be rejected for the same
reasons.
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 Novovolynskyy Town Court 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 complaints under Article 13 of the Convention and
Article 1 of Protocol No. 1 cannot be declared
inadmissible.
B. Merits
The
Government maintained that the judgment in the applicant's favour was
enforced in full. The Government argued that the State could not be
considered responsible for the debts of its enterprises. They further
maintained that the responsibility of the State
in this situation was limited to the organisation and proper conduct
of enforcement proceedings and that the length of the
enforcement proceedings had been caused by the critical financial
situation of the debtor company. The Government contended that the
Bailiffs' Service had performed all necessary actions and could not
be blamed for the delay.
The
applicant disagreed.
The
Court notes that the judgment in the applicant's favour was not
enforced for more than 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, among others,
Romashov v. Ukraine, cited above, §§ 42 46;
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.
The
Court does not consider it necessary in the circumstances to rule on
the same complaint under Article 13 of the Convention.
II. 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 30,000
in respect of pecuniary and non-pecuniary damage.
The
Government maintained that the applicant's pecuniary and
non-pecuniary claims were non-substantiated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
Making its assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant
EUR 1,200 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed UAH 174.97
for costs and expenses occurred before the Court.
The
Government did not comment on the applicant's claims for costs and
expenses.
The
Court considers that the applicant has provided relevant bills for
the amount claimed. The Court, therefore, awards the applicant EUR 30
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 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 of the Convention;
Holds that it is not necessary to rule on the
applicant's 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 1,230 (one
thousand two hundred and thirty euros) in respect of non-pecuniary
damage, costs and expenses, plus any tax that may be chargeable;
(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;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
