British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
BAKHEROV v. UKRAINE - 1192/04 [2007] ECHR 749 (27 September 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/749.html
Cite as:
[2007] ECHR 749
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF BAKHEROV v. UKRAINE
(Application
no. 1192/04)
JUDGMENT
STRASBOURG
27
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 Bakherov 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 4 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1192/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Viktor Andreyevich
Bakherov (“the applicant”), on 6 December 2003.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeriya Lutkovska.
On
26 May 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
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1939 and lives in the town of Dzerzhyns'k,
Donetsk region.
On
3 October 2000 the Dzerzhyns'k Court awarded the applicant against
the Gagarina coal mine (owned by the Artemvugillya State Company) UAH
107,684 (EUR 22,518) in social benefits arrears and UAH 1,946 (EUR
407) in monthly payments as of 3 October 2000.
On
9 November 2000 the Mykytivsky District Bailiffs' Service
(hereinafter “the Bailiffs”) instituted the enforcement
proceedings and on the same day suspended them in respect of the
social benefits arrears due to the bankruptcy proceedings against the
debtor pending before the Donetsk Commercial Court.
On
15 November 2000 the enforcement proceedings in the applicant's case
were resumed and joined to the other enforcement proceedings against
the debtor.
On
5 April 2002 the Mykytivsky District Court of Gorlivka rejected the
applicant's claim against the alleged Bailiffs' inactivity. On 14
October 2002 and 10 June 2003 the Donetsk Regional Court of Appeal
and the Supreme Court, respectively, upheld this decision.
On
25 February 2003 the Ministry of Fuel transformed the debtor into a
subdivision of the Artemvugillya Company.
On
18 September 2003 the applicant was paid UAH 15,000.
On
21 July 2004 the applicant was paid UAH 1,000.
On
18 October 2004 the applicant was paid UAH 1,617.
On
19 November 2004 the applicant was paid UAH 68,916.
On
23 December 2004 the applicant was paid the remainder of the debt -
UAH 21,345.
As
to the judgment of 3 October 2000 in part of monthly payments of UAH
1,945 to the applicant, the writ of execution was issued on the same
day and the Bailiffs transferred it to the Industrial Accidents
Insurance Fund (Фонд
соціального
страхування
від нещасних
випадків на
виробництві
і професійних
захворювань).
The monthly payments are transferred to the applicant without delays.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
The
applicant complained about the infringement of Articles 6 § 1
and 13 of the Convention caused by the lengthy non-enforcement the
judgment of 3 October 2000 in part of social benefits arrears awarded
to him. The above provisions 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.”
A. Admissibility
The
Government observed that there was no omission by the State
authorities as the judgment given in the applicant's favour was
enforced in full.
The Court observes that the applicant's complaints
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 the application inadmissible. The Court must therefore
declare it admissible.
B. Merits
In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in the applicant's
respect.
The
applicant disagreed.
The
Court notes that the judgment given in the applicant's favour
remained unenforced for almost fifty months.
The
Court recalls that it has already found violation of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Sokur v. Ukraine, cited above and Mykhaylenky and
Others v. Ukraine, nos. 35091/02, 35196/02, 35201/02,
35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and
42814/02, § 45, ECHR 2004).
Having
examined all the materials 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.
The
Court does not find it necessary in the circumstances to examine the
same complaint under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
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 100,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
The
Government found this claim unsubstantiated and exorbitant as the
judgment in the applicant's favour was enforced in full.
The
Court considers that the applicant must have sustained non-pecuniary
damage as a result of the violations found (see Kryachkov
v. Ukraine, no. 7497/02, § 30, 1 June 2006).
Making its assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant
EUR 1,600 in this respect.
B. Costs and expenses
The
applicant also claimed EUR 55 for the costs and expenses incurred
before the Court. The Court considers it reasonable to award the
applicant this sum.
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 is no need to examine the
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 1,655 (one
thousand six hundred and fifty five euros) in respect of
non-pecuniary damage and costs and expenses, 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 27 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
