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GAYKOVYCH v. UKRAINE - 38931/02 [2007] ECHR 1126 (20 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1126.html
Cite as:
[2007] ECHR 1126
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FIFTH
SECTION
CASE OF GAYKOVYCH v. UKRAINE
(Application
no. 38931/02)
JUDGMENT
STRASBOURG
20
December 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 Gaykovych 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,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38931/02) 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, Mrs Nella Antonivna
Gaykovych (“the applicant”), on 24 September 2002.
The
applicant was represented by Mr Kostyantyn Buzadzhy, a lawyer
practising in Kyiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Yuriy Zaytsev.
On
7 March 2007 the Court decided to communicate the complaint
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 1940 and lives in Kyiv.
On
10 September 1998 the Leningradsky District Court of Kyiv instituted
criminal proceedings against the applicant for defamation.
On
4 February 2000 the same court found the applicant guilty.
On
3 August 2000 the Kyiv Court quashed this decision and terminated
criminal proceedings on exonerative grounds.
In
July 2001 the applicant instituted civil proceedings against the
Department of the State Treasury in the Svyatoshynsky District of
Kyiv (hereafter “the Department”) seeking compensation
for moral damage caused by the criminal proceedings.
On
16 January 2002 the Solomyansky District Court of Kyiv (hereafter
“the Solomyansky Court”) allowed the applicant's claim
and awarded her UAH 3,360 (EUR 600) in compensation.
On
28 March 2002 the Kyiv City Court of Appeal upheld this judgment and
it became final. On 21 May 2003 the Supreme Court rejected the
applicant's cassation appeal.
The
writ of execution was issued on 26 June 2002, and the applicant
submitted it to the Svyatoshynsky Bailiff's Service (hereafter “the
Bailiffs”) on 23 July 2002.
On
25 July 2002 the Bailiffs suspended the opening of enforcement
proceedings as the writ did not contain the debtor's bank requisites.
The decision also indicated that the judgment of 16 January 2002
could not be enforced as it did not comply with the Law on the State
Budget.
On
4 October 2002 the Solomyansky Court submitted to the Bailiffs a
rectified writ.
On
27 January 2003 the Bailiffs attached the Department's bank account.
On
1 April 2003 the Bailiffs terminated the enforcement proceedings due
to the respondent's lack of funds. The applicant was not informed
about this decision in due time.
On
20 August 2003 the Svyatoshynsky District Court of Kyiv (hereafter
“the Svyatoshynsky Court”) allowed the applicant's
complaint against the Bailiffs' inactivity and found that the
termination of the enforcement proceedings was unlawful.
On
26 September 2003 the enforcement proceedings were resumed.
On
10 December 2003 the Svyatoshynsky Court ordered to change the debtor
in the case to the Central Office of the State Treasury.
On
18 December 2003 the Pechersky Bailiff's Service initiated the
enforcement proceedings.
On
21 January 2004 the applicant was paid the judgment debt and the
enforcement proceedings were terminated.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law is summarised in the judgment of Voytenko
v. Ukraine (no. 18966/02, §§
20-25, 29 June 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 6 § 1 of the Convention and Article 1 of Protocol No.
1 the applicant complained about the lengthy non-enforcement of the
judgment given in her favour. The applicant also complained under
Article 13 of the Convention that she had no effective remedies
in respect of her complaint under Article 6 § 1 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 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 ...”
A. Admissibility
The
Government raised objections regarding
exhaustion of domestic remedies and admissibility ratione
personae similar to those already dismissed in a number of
similar cases (see Shestakov v. Russia (dec.), no. 48757/99,
18 June 2002 and Skubenko v. Ukraine (dec.),
no. 41152/98, 6 April 2004). The Court
considers that the present objections must be rejected for the same
reasons.
The Court concludes that the applicant's complaints
under Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1 raise issues of fact and law
under the Convention, the determination of which requires an
examination of the merits. It finds no ground for declaring them
inadmissible.
B. Merits
1. The applicant's complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
In
their observations, the Government reiterated that the judgment of 16
January 2002 in the applicant's favour had been enforced in full.
They further indicated that the Bailiffs had performed all necessary
actions in order to enforce the judgment in question.
The
applicant disagreed.
The
Court notes that the judgment of 16 January 2002 remained unenforced
for one year and ten months.
The
Court recalls that it has already found violation 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, Voytenko v. Ukraine, cited above, §§
39-43 and 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.
2. The applicant's complaint under Article 13 of the
Convention
The
Government contended that the applicant had had an effective remedy
at her disposal but had not used it.
The
applicant disagreed.
The
Court, having regard to its case-law, considers that the applicant
did not have an effective domestic remedy, as required by Article 13
of the Convention, to redress the damage created by the delay in the
present proceedings (see Voytenko v. Ukraine, cited
above, § 48). Accordingly, there has been a breach of this
provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Articles 6 § 1 and 13 of the
Convention and Article 3 of Protocol No. 7 that the amount of
compensation awarded to her by the judgment of 16 January 2002 was
unreasonably low.
However,
in the light of all the materials in its possession, the Court finds
that these submissions do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 of the Convention.
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 EUR 6,000 in respect of non-pecuniary damage.
The
Government contested the claim as unsubstantiated and exorbitant.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 500 under
that head.
B. Costs and expenses
In
the present case the applicant failed to submit any claims; 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 complaint concerning the lengthy
non-enforcement of the judgment in the applicant's favour and the
lack of the effective remedies in this respect 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;
Holds that there has been a violation of 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 500 (five
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into the national currency of the
respondent State 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 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 20 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
