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BLANUTSA v. UKRAINE - 35274/03 [2007] ECHR 729 (20 September 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/729.html
Cite as:
[2007] ECHR 729
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FIFTH
SECTION
CASE OF BLANUTSA v. UKRAINE
(Application
no. 35274/03)
JUDGMENT
STRASBOURG
20
September 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 Blanutsa v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 28 August 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35274/03) 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 Aleksandr Semyonovich
Blanutsa (“the applicant”), on 3 October 2003.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
On
11 May 2006 the Court decided to communicate the complaint concerning
the 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 1937 and lives in the city of Mykolayiv.
1. Non-enforcement of the judgment given in the
applicant's favour
The
applicant is a former employee of the State-owned enterprise
“Mashproekt” (hereinafter “MP”). In June 1999
staff of this enterprise refused to issue upon the applicant's
request a certificate about his work and salary, which he required
for the re-calculation of his retirement pension.
On
14 December 1999 the Leninsky District Court of Mykolayiv
(hereinafter “the District Court”) ordered MP to provide
the applicant with the requested certificate. In particular, the
court ordered MP to certify that as of 30 March 1978 the applicant
worked as the head of one of MP's departments. This judgment became
final on 19 January 2000.
On
24 February 2000 the Leninsky Bailiffs' Office of Mykolayiv
(hereinafter “the Bailiffs”) instituted the enforcement
proceedings. On 29 March 2000 the proceedings were terminated.
On
2 August 2000 the District Court ordered the Bailiffs to resume the
enforcement proceedings.
On
23 August 2002 the Bailiffs terminated the enforcement proceedings as
the director of MP had sent a letter to the applicant.
In
September 2002 the applicant lodged an administrative complaint
against this decision.
On
18 January 2005 the District Court quashed the Bailiffs' decision of
23 August 2002 and ordered resumption of the enforcement
proceedings.
On
30 May 2005 the enforcement proceedings were resumed.
On
18 November 2005 the enforcement proceedings were terminated as on 17
November 2005 MP provided the applicant with the certificate.
On 13 November 2006 the Head of the Bailiffs quashed the decision of
18 November 2005 on the ground that the certificate provided to the
applicant did not comply with the requirements ordered by the
judgment of 14 December 1999.
The
judgment of 14 December 1999 remains unenforced.
2. Other proceedings instituted by the applicant
against MP
In
January 2002 the applicant lodged an administrative complaint against
the director of MP seeking to be admitted to his work position.
On
8 February 2002 the District Court left the applicant's claim without
consideration as the issue should be examined within the civil
proceedings.
On
3 April 2002 the Mykolayiv Regional Court of Appeal (hereinafter “the
Court of Appeal”) quashed this ruling and remitted the case for
a fresh consideration.
On
17 February 2003 the District Court left the applicant's
administrative complaint without consideration and explained that the
applicant should lodge a claim within the civil proceedings.
On
23 April 2003 and 5 July 2004 the Court of Appeal and the Supreme
Court, respectively, upheld this ruling.
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 new complaints
concerning other proceedings against the staff of MP.
In
the Court's view, the new complaints are not an elaboration of the
applicant's original complaints to the Court on which the parties
have commented. The Court considers, therefore, that it is not
appropriate now to take these matters up separately (see Piryanik
v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained about the infringement of Article 6 § 1 of
the Convention caused by the lengthy non-enforcement the judgment of
14 December 1999 given in his favour. The above provision
provides, insofar as relevant, as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The Court notes that this complaint 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.
B. Merits
In
their observations, the Government submitted that the Bailiffs took
all necessary measures aimed at enforcement of the judgment at issue
and contended that there had been no violation of Article 6 § 1
of the Convention in the applicant's respect.
The
applicant disagreed.
The
Court notes that the judgment given in the applicant's favour remains
unenforced for seven years and eighth month.
The
Court observes that in November 2005, i.e. five years and eleven
months after the judgment of 14 December 1999 was given, the
administration of MP did provide the applicant with the certificate.
However, finding that this certificate did not comply with the said
judgment, the Head of the Bailiffs resumed the enforcement
proceedings. The Court further notes that the measures adopted by the
Bailiffs in the course of the enforcement proceedings and referred to
by the Government appeared ineffective.
The
Court recalls that it has already found violation of Article 6 § 1
of the Convention in a number of similar cases (see Romashov,
cited above, §§ 42-46, and Voytenko v.
Ukraine, no. 18966/02, §§ 53-55, 29 June 2004).
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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained under Article 6 § 1 of the
Convention about the unfair outcome of the proceedings instituted by
him in January 2002. The applicant further complained under Article
14 of the Convention about discrimination.
However,
in the light of all the materials in its possession, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that these parts of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 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 claimed EUR 87,000 in respect of
pecuniary and EUR 80,000 in respect of non-pecuniary damage.
The
Government maintained that the applicant's claims were exorbitant and
non-substantiated.
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged. At the same time, the Court
reiterates that a judgment in which it finds a breach imposes on the
respondent State a legal obligation to put an end to the breach and
make reparation for its consequences in such a way as to restore as
far as possible the situation existing before the breach (Metaxas v.
Greece, no. 8415/02, § 35, 27 May 2004 and
Iatridis v. Greece (just satisfaction) [GC],
no. 31107/96, § 32, ECHR 2000 XI). Therefore, the
Court concludes that the State's outstanding obligation to enforce
the judgment given in the applicant's favour is not in dispute.
As
to the remainder of the applicant's claim for just satisfaction, the
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant EUR 2000 (two
thousand euros) in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant failed to submit any claim; 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
non-enforcement of the judgment 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
(a) that
the respondent State, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, is to fulfil the judgment of 14 December 1999
given by the Leninsky District Court of Mykolayiv in the applicant's
favour as well as to pay the applicant EUR 2000 (two thousand euros)
in respect of non-pecuniary damage to 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;
(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 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
