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LUKYANCHENKO v. UKRAINE - 17327/02 [2008] ECHR 401 (15 May 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/401.html
Cite as:
[2008] ECHR 401
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FIFTH
SECTION
CASE OF LUKYANCHENKO v. UKRAINE
(Application
no. 17327/02)
JUDGMENT
STRASBOURG
15 May 2008
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 Lukyanchenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Rait
Maruste,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 17327/02) 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, Mr Oleksandr Veniaminovych Lukyanchenko
(“the applicant”), on 21 March 2002.
The
Ukrainian Government (“the Government”) were represented
by Mr Y. Zaytsev, their Agent, and Mrs V. Lutkovska,
Deputy Minister of Justice.
On
27 March 2007 the Court
declared the application partly inadmissible and decided to
communicate the complaints concerning the non-enforcement of a final
judgment given in the applicant’s favour and the length of the
civil proceedings in his case. Applying Article 29 § 3
of the Convention, it decided to rule on the admissibility and merits
of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1960 and lives in Khmelnytskyy.
On
5 February 1999 the applicant lodged an administrative
complaint with the Khmelnytskyy Court (Хмельницький
міський суд)
seeking moral damages from the State for allegedly unlawful
actions of the law-enforcement authorities in connection with a
criminal prosecution discontinued in 1998.
After
several reconsiderations of the claim, on 19 July 2001 the
Khmelnytskyy Court awarded the applicant 3,000 hryvnyas (UAH).
On
16 October 2001 the Khmelnytskyy Regional Court
(Апеляційний
суд Хмельницької
області)
decreased the amount of compensation to UAH 140. The operative
part of the decision indicated that it immediately gained binding
effect and that the award was payable upon the applicant’s
presentation of the decision to the local department of the State
Treasury.
On
1 February 2002 the Supreme Court rejected the applicant’s
request for leave to appeal in cassation against
the decision of 16 October 2001. Since then the applicant
has unsuccessfully sought re-opening of the proceedings and award of
higher compensation.
On 9 November 2001
the Khmelnytskyy Court issued the applicant with an enforcement writ
in respect of the judgment of 19 July 2001 as amended by
the decision of 16 October 2001.
On
27 February 2002 the applicant
submitted the writ to the Khmelnytskyy State Treasury Department
(“the Khmelnytskyy Treasury”; Відділення
державного
казначейства
у м. Хмельницькому).
On
19 March 2002 the Khmelnytskyy Treasury informed the
applicant that they decided to return the writ unenforced, as, in
particular, the payment due to him had to be made by the National
Bank (Національний
банк України)
to the order of the Bailiffs’ Service.
In
June 2002 the applicant challenged the failure of the Khmelnytskyy
Treasury to ensure enforcement of the judgment in his favour by way
of lodging an administrative complaint with the Khmelnytskyy Court.
In his submissions he noted that the Treasury in fact had never
returned him the enforcement writ and so he had not been able to
submit it to the Bailiffs’ Service. On 4 September 2002
the court dismissed his complaint as unsubstantiated. On
26 November 2002 the Regional Court further dismissed the
applicant’s appeal and on 25 March 2004 the Supreme
Court rejected the applicant’s request for leave to appeal in
cassation.
In
the meantime, on 16 August 2002 the Khmelnytskyy Court
transferred, of its own motion, the writ of enforcement in respect of
the judgment in the applicant’s favour to the Pecherskyy
District Bailiffs’ Service of Kyiv (“the Pecherskyy
Bailiffs”; Відділ
Державної
виконавчої
служби Печерського
району м. Києва).
On
28 August 2002 the Pecherskyy Bailiffs instituted
enforcement proceedings and invoiced the National Bank for UAH 140.
The invoice contained the name of “Lukyanchuk”
instead of “Lukyanchenko” as the beneficiary. On
3 September 2002 the National Bank transferred the payment
in favour of Mr Lukyanchuk to the Pecherskyy Bailiffs’
deposit account and the relevant handwritten entry mentioning
Mr Lukyanchuk as the beneficiary was introduced into the
Pecherskyy Bailiffs’ record book.
On
16 September 2005 the applicant requested the Khmelnytskyy
Court to issue him with a duplicate enforcement writ, noting that
having never received the unenforced writ back from the Khmelnytskyy
Treasury he had been unable to locate it and claim the judgment
award.
16. On
17 October 2005 the Khmelnytskyy Court requested the
Pecherskyy Bailiffs to provide information concerning the status of
the enforcement. On 12 January 2001 the Khmelnytskyy Court
sent a reminder requesting an urgent reply. On 26 January 2006
the Pecherskyy Bailiffs informed the Khmelnytskyy Court that,
following expiration of the three-year statutory term for keeping
unclaimed deposits, in September 2005 the sum due to the applicant
had been transferred to the State budget and on 29 December 2005
a decision had been taken to return the enforcement writ to the
applicant. In the same letter they noted that according to the
statutory provisions, the National Bank was to keep the writ.
On
28 March 2006 the Khmelnytskyy Court rejected the
applicant’s request to issue a duplicate writ, having noted,
referring to the Pecherskyy Bailiffs’ letter, that the original
writ had not been lost and that it had been kept by the National
Bank. On 11 May 2006 the Regional Court upheld this ruling
on the applicant’s appeal.
On
17 May 2006 the National Bank informed the applicant that
it had received no writ of enforcement in respect of a judgment in
his favour.
The
judgment given in the applicant’s favour remains unenforced to
the present date.
II. RELEVANT DOMESTIC LAW
A. Law of Ukraine of 21 April 1999 on
Enforcement Proceedings
The
relevant extracts from the Law on Enforcement Proceedings read as
follows:
Article 24. Admission of the enforcement
writ for enforcement
... Within a three-day term of receipt of the
enforcement writ a State bailiff shall take a decision to initiate
the enforcement proceedings...
(...)
No later than the following day a copy of the decision
to initiate the enforcement proceedings shall be transmitted to the
beneficiary, the debtor and the body (official) that issued the
enforcement writ ...
Article 44-1. Payment of the collected funds to
the beneficiary
Funds
collected
from
the
debtor,
shall
be
transferred by
the bailiff
to
the deposit
account of the respective body of the State Bailiffs’ Service.
(...)
If the
funds
collected
from
the
debtor
remain unclaimed
by
the
beneficiary within
three
years
from
the
date
of
their
transfer
to
deposit
account
of
the
State
Bailiffs’
Service,
these
funds
shall
be
transferred
to
the
State
Budget
of
Ukraine...
B. Order of
the Ministry of
Justice of
Ukraine of 15 December 1999 on
the Approval of the
Instruction on the Performance of the Enforcement Actions
21. Relevant provisions of this order
read as follows:
11.2.16. Funds
transferred
to
the deposit
account
of
the
State
Bailiffs’
Service shall be preserved:
...deposited sums
that are to be paid to the citizens – during three years;
(...)
11.2.18. Term
of
preservation
of
these
amounts shall be
calculated
from
the
day
of
sending
notice to
the beneficiary about
the availability of the funds
due to him.
THE LAW
I. SCOPE OF THE CASE
Following
the Court’s admissibility decision, the applicant made
submissions on the merits, in which he referred to the entirety of
his original complaints.
The
Court recalls that, in its partial decision on admissibility of
27 March 2007, it adjourned the examination of the
applicant’s complaints under Article 6 § 1 of
the Convention concerning the non-enforcement of a judgment and the
length of compensation proceedings. The remainder of the complaints
were declared inadmissible. Thus, the scope of the case now before
the Court is limited to the complaints, which have been adjourned
(see Agrotehservis v. Ukraine, no. 62608/00, § 37,
5 July 2005).
II. ADMISSIBILITY
The
applicant complained that the failure of the domestic authorities to
enforce the judgment given in his favour had deprived him of access
to a court and that the overall length of his compensation
proceedings, including their enforcement stage, had been incompatible
with Article 6 § 1 of the Convention. The impugned provision,
insofar as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government presented no observations concerning the admissibility of
these complaints.
The
Court notes that the applicant’s complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
III. MERITS
A. The non-enforcement of the judgment
The
Government contended that there was no violation of Article 6 § 1.
They maintained that the non-enforcement was attributable to the
applicant himself, since he had failed to claim the payment from the
Bailiffs.
The
applicant disagreed, maintaining that the authorities had interfered
with his right to claim the award on time, having failed to keep
accurate records, to instruct him clearly and having continuously
confronted him with contradictory information as to the enforcement
procedure.
The
Court reiterates that enforcement of a judgment given by any court is
an integral part of the “trial” for the purposes of
Article 6 (see Hornsby v. Greece, judgment of 19 March 1997,
Reports 1997-II, p. 510, § 40; Romashov v.
Ukraine, no. 67534/01, § 42, 27 July 2004). It is
therefore incumbent on the State to organise a system for enforcement
of judgments that is effective both in law and in practice and
ensures their enforcement without any undue delay (Fuklev v.
Ukraine, no. 71186/01, § 84, 7 June 2005).
While the Contracting States enjoy a wide margin of appreciation in
determining logistical arrangements for the administration of
justice, these arrangements should foster accurate record-keeping
practices and enable the parties to obtain prompt access to
information concerning the developments in their proceedings (see,
mutatis mutandis, Sukhorubchenko v. Russia,
no. 69315/01, §§ 45 and 53, 10 February 2005).
Turning
to the facts of the present case, the Court notes that the judgment
given in the applicant’s favour became enforceable on
16 October 2001 and remains unenforced to the present date.
The period of non-enforcement has, therefore, exceeded six and a half
years.
Even
taking into account the Government’s submission that the
payment had been made available to the applicant in September 2002,
the Court notes the eleven-month period between this date and the
date on which the judgment had gained binding effect. The Court
observes, further, that the Government presented no evidence that the
applicant had been duly notified about the availability of the
payment, or even about the institution of the enforcement proceedings
on his behalf, as required by domestic law (see paragraphs 20-21
above). On the contrary, taking into account that the applicant’s
name was misspelled in the Bailiffs’ records and that the
applicant has made several unsuccessful attempts to locate the
enforcement writ, which generated contradictory responses by various
authorities (see paragraphs 7, 11-19 above), the Court
finds credible his submissions concerning lack of adequate
record-keeping and access to information as regards the status of the
enforcement. In light of the above, the Court considers that the
applicant was effectively deprived of an opportunity to claim the
judgment award.
The
Government have therefore failed to secure the applicant’s
right of access to a court in the present case. There has accordingly
been a breach of Article 6 § 1.
B. Length of the proceedings
As
regards the applicant’s complaint about the excessive length of
his compensation proceedings, including their enforcement stage, the
Court notes that, notwithstanding certain delays in the judicial
stage of the proceedings at issue, attributable, in particular, to
various remittals, the most significant delays took place during the
enforcement stage. The Court has already taken this aspect into
account in its examination of the applicant’s right of access
to a court above.
Having
regard to its findings on that point, the Court finds that it is not
necessary to examine separately the issue of the length of the
proceedings in the present case.
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 1,000,000 hryvnyas, including the unsettled
judgment debt, in respect of pecuniary and non-pecuniary damage
allegedly caused by infringement of his Convention rights.
The
Government contested the claim.
The
Court does not discern any causal link between the violations 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. The Court further finds that the applicant must have
suffered non-pecuniary damage on account of the prolonged inability
to obtain compensation for the unlawful actions of the
law-enforcement authorities. Making its assessment on an equitable
basis, the Court finds it reasonable to award the applicant EUR 2,000
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed UAH 5,000 for the costs and expenses.
The
Government noted that the applicant failed to include supporting
documents and maintained that his claim was unsubstantiated.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the fact that the applicant did not present any supporting documents
within the time-limit allotted by the Court for this purpose, the
Court rejects the claim for 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 remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
3. 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 pay the applicant the outstanding debt under
the judgment of 19 July 2001 as amended on 16 October 2001
as well as to pay the applicant EUR 2,000 (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 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
