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Cite as: [2007] ECHR 28

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FIFTH SECTION

CASE OF PARKHOMENKO v. UKRAINE

(Application no. 5531/04)

JUDGMENT

STRASBOURG

11 January 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 Parkhomenko 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 J. Borrego Borrego, judges,
and Mrs C. Westerdiek, Section Registrar,

Having deliberated in private on 4 December 2006,

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

PROCEDURE

The case originated in an application (no. 5531/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Ivan Nikolayevich Parkhomenko (“the applicant”), on 30 December 2003.

The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.

On 5 December 2005 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

The applicant, a Ukrainian national, was born in 1935. He died on 14 November 2005. In a letter of 16 February 2006, the applicant's wife Mrs Y.P. Parkhomenko informed the Court that she wished to pursue the application.

I. THE CIRCUMSTANCES OF THE CASE

In 1995 the applicant instituted proceedings in the Krasnodon Town Court (the “Krasnodon Court”) against the Duvannaya State Mine (the “Mine”), seeking the recovery of occupational disability arrears.

On 5 May 1995 the court found for the applicant and ordered the Mine to pay the applicant 273,171,500 karbovantsiv ¹ (the former transitional currency of Ukraine before September 1996) in occupational disability arrears. On 15 June 1995 the Lugansk Regional Court upheld this decision.

On 22 December 1995 the same court ordered the Mine to pay the applicant 527,638,000 karbovantsiv ² in occupational disability arrears.

By two separate decisions of 25 October 2000, the Presidium of the Lugansk Regional Court, following the protest lodged by the Deputy Prosecutor of the Lugansk Region, quashed the above judgments and remitted both cases for a fresh consideration.

On an unspecified date the applicant's claims were joined. On 16 May 2002 the Krasnodon Court rejected them. On an unspecified date the Lugansk Regional Court of Appeal quashed the decision of 16 May 2002 and remitted the case for a fresh consideration.

On 18 December 2002 the Krasnodon Court found in part for the applicant and awarded him UAH 13,854.11 ³ in occupational disability arrears and other payments. On 22 April 2003 the court rejected the Mine's request for leave to appeal against the judgment of 18 December 2002 for failure to comply with procedural formalities.

On 24 April 2003 the Krasnodon Court submitted two writs of execution for the judgment of 18 December 2002 to the Krasnodon Town Bailiffs' Service for initiation of enforcement proceedings.

On 12 May 2003 the Bailiffs' Service instituted enforcement proceedings.

Pursuant to the order of the Ministry of Fuel and Energy of 23 January 2003 the Mine became a structural division of the Krasnodonvugillya State Enterprise.

On 27 October 2003 the Krasnodon Court changed the debtor in the enforcement proceedings and ordered the Krasnodonvugillya State Enterprise to pay the applicant the award of 18 December 2002.

Pursuant to the order of the Ministry of Fuel and Energy of 8 June 2004 the Krasnodonvugillya State Enterprise was reorganized into the Joint-Stock Company “Krasnodonvugillya”.

On 2 August 2004 the Krasnodon Court changed the debtor in the enforcement proceedings and ordered the JSC “Krasnodonvugillya” to pay the applicant the award of 18 December 2002.

On 29 September 2005 the Bailiffs' Service requested the applicant to provide them with his bank account information in order to transfer the judgment debt. The applicant did not reply.

Between 29 September 2005 and 1 February 2006 the whole amount of the judgment debt due to the applicant was transferred to the Bailiffs' Service's account and became available for payment.

On 7 November 2006 the Bailiffs' Service were informed about the applicant's death. On the same date the enforcement proceedings were suspended until determination of the applicant's heirs.

As the applicant's heirs failed to lodge with the Krasnodon Court a motion to change a creditor in the enforcement proceedings, the judgment debt owed to the applicant remains with the Bailiffs' Service.

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).

Article 11 § 5 of the Law of Ukraine “On Enforcement Proceedings” provides that in case of leaving of a party to the proceedings, the bailiff at his own motion or upon a party's request, as well as the interested party, should lodge a request with the court for replacement of the left party by its successor.

THE LAW

The applicant complained about the State authorities' failure to execute the judgment of 18 December 2002 in due time. He alleged an infringement of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provide, in so far 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 ....”

I. AS TO THE LOCUS STANDI OF MRS PARKHOMENKO

The applicant died on 14 November 2005. On 16 February 2006 the applicant's wife Mrs Y.P. Parkhomenko informed the Court that she wished to pursue the application. The respondent Government did not object.

The Court notes that the present application concerns a property right which is, in principle, transferable to the heirs, and that there is a next of kin who wishes to pursue the case. In these circumstances, the Court considers that the applicant's widow (hereinafter “the heir”) has standing to continue the present proceedings instead of the applicant. However, reference will still be made to the applicant throughout the ensuing text.

II. ADMISSIBILITY

The Government did not raise any objection in respect of admissibility of the application.

The Court notes that the applicant's complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment in his favour 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.

III. MERITS

The Government contended that the applicant's entitlement to the award had not been disputed and he was not deprived of his property. They further maintained that the responsibility of the State in this situation had been 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 stressed that the Bailiffs' Service had performed all necessary actions and could not be blamed for the delay. They finally maintained that according to the law after the applicant's death the creditor in the enforcement proceedings had to be changed by the court, and the applicant's heirs had to request the court to do that.

The heir disagreed and insisted that the judgment debt had to be transferred to her account without any further court order.

The Court observes that the judgment at issue remained unenforced until 1 February 2006 when the full amount of the debt became available. The Court takes into account that the heir was duly notified about the possibility to recover the award established by the judgment of 18 December 2002. However, she failed to institute the relevant inheritance proceedings (see, mutatis mutandis, Zamula and Others v. Ukraine, no. 10231/02, § 43, 8 November 2005).

Notwithstanding the fact that the heir failed to follow the procedure prescribed by law in order to obtain the debt, the Court nevertheless considers that by failing for three years and one month to take the necessary measures to comply with the judgment of 18 December 2002, the authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect.

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 raising issues similar to the present application (see, for instance, Romashov, cited above, §§ 42-46). It further considers that the Government have not advanced any convincing justification for this delay (see Shmalko v. Ukraine, no. 60750/00, judgment of 20 July 2004, § 45).

There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

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 claimed pecuniary damage relating to the amount awarded to him by the judgment. He further claimed UAH 15,000 ¹ in respect of non-pecuniary damage.

The Court notes that the applicant's heir, once appointed in accordance with the domestic law, is entitled to obtain the impugned judgment debt currently available for payment from the Bailiffs' Service. As to the applicant's claim in respect of non-pecuniary damage, the Court considers this sum excessive. Making its assessment on an equitable basis as required by Article 41 of the Convention, the Court awards the sum of EUR 800 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 under this head.

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

Holds that the applicant's wife (Mrs Yelena Pavlovna Parkhomenko) has standing to continue the present proceedings in his stead;

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

(a) that the respondent State is to pay Mrs Yelena Pavlovna Parkhomenko within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight 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;

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

Done in English, and notified in writing on 11 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President

1 Equivalent of UAH 2,731.72 (around EUR 454).

2 Equivalent of UAH 5,276.38 (around EUR 880).

3 Around EUR 2,308.

1 Around EUR 2,370