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ARSENENKO v. UKRAINE - 6128/04 [2008] ECHR 94 (31 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/94.html
Cite as:
[2008] ECHR 94
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FIFTH
SECTION
CASE OF ARSENENKO v. UKRAINE
(Application
no. 6128/04)
JUDGMENT
STRASBOURG
31 January
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 Arsenenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Mark
Villiger,
judges,
and Claudia Westerdiek, Section
Registrar,
Having deliberated in private on 8
January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 6128/04) 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 Volodymyr Mykolayovych
Arsenenko (“the applicant”), on 26 January 2004.
The Ukrainian Government (“the Government”)
were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
On
15 March 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 1956 and resides in the town of Gorlivka,
Donetsk region, Ukraine.
According
to the applicant, in 1997 he instituted
proceedings in the Tsentralno-Miskyy District Court of Gorlivka
against his former employer, the Lenin State Mining Company (шахта
ім. Леніна
м. Горлівки),
claiming compensation for damage to his health. On 6 July 2001 the
court awarded the applicant a lump sum of 43,241.61
Ukrainian hryvnas (UAH) and monthly payments of UAH 834.31
(рішення
Центрально-міського
суду
м. Горлівки).
This judgment became final on 3 December 2001.
On 23 January 2002 the
Tsentralno-Miskyy District Bailiffs' Service of Gorlivka
(відділ
Державної
виконавчої
служби Управління
юстиції Центрально-міського
району м. Горлівки)
initiated the enforcement
proceedings.
By
letters of 17 April, 14 May, 27 December 2002 and 21 November 2003,
the Bailiffs' Service informed the applicant that it was impossible
to sell the debtor's property because, according to the Law on the
Introduction of a Moratorium on the Forced Sale of Property, on
26 December 2001 a ban on the forced sale of assets belonging to
undertakings in which the State holds at least 25% of the share
capital had been introduced.
On 27 February 2003 the applicant
was paid UAH 11,546.43. According to the Government, in 2005 the
applicant had been paid UAH 1,475.64 in addition to the
aforesaid sum. No document in support of this statement has been
submitted.
The applicant disagreed, stating
that he had been paid UAH 11,546.43 only.
Both parties agreed that the
court judgment remains partly
unenforced.
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. THE LENGTH OF THE PROCEEDINGS
Relying
on Article 13 of the Convention the applicant complained of the
lengthy consideration of his case by the court and about the lengthy
non-enforcement of the judgment of 6 July 2001, i.e. that the lump
sum awarded to him remained unpaid. Article 13 reads as follows:
“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.”
The Court has examined the applicant's complaints
under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 which 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 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 the
exhaustion of domestic remedies similar to those which the Court has
already dismissed in the case of Romashov v. Ukraine
(no. 67534/01, §§ 28-32, 27 July 2004). The Court
considers that they must be rejected for the same reasons.
The Court notes that the application 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
The
Government maintained that the Bailiffs' Service had performed all
necessary actions in order to enforce the judgment of 6 July 2001 in
the applicant's favour. The Government further contended that the
length of enforcement was not unreasonable and was caused by a
difficult financial situation of the debtor company.
The
applicant did not submit any observations in respect of the merits of
the cases.
The
Court reiterates that the court proceedings and the enforcement
proceedings are stages one and two in the total course of proceedings
(see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 197,
ECHR 2006-...). Therefore, the enforcement proceedings should not be
dissociated from the action and the proceedings are to be examined in
their entirety (see Estima Jorge v. Portugal, judgment of 21
April 1998, Reports of Judgments and Decisions 1998-II, § 35
and, as a recent authority, Sika v. Slovakia, no. 2132/02,
§§ 24-27, 13 June 2006).
The
Court notes that the applicant's complaint about the length of the
court proceedings in his case is limited to the general statement
that his case had been considered by the court for four years. No
further specification in support to this complaint has been provided
by the applicant.
However,
the Court observes that the judgment of 6 July 2001 given in the
applicant's favour has remained unenforced for more than six years.
The Court recalls that it has already found violations
of Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 in a number of similar cases (see, for
instance, Dubenko v. Ukraine, no. 74221/01, §§ 47
and 51, 11 January 2005).
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 in respect of the lengthy non-enforcement of the
judgment in the applicant's favour and a violation of Article 1
of Protocol No. 1 in the present application.
The
Court does not find it necessary in the circumstances to examine the
same complaints 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.”
Damage, costs and expenses
In
the present case the applicant failed to submit his
claims in time; the Court therefore makes no award.
The
Court, however, notes that it is undisputed that the State still has
an outstanding obligation to enforce the judgment at issue.
Accordingly, the applicant remains entitled to recover the principal
amount of the debt awarded to him in the course of the domestic
proceedings.
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 has been a violation of Article
1 of Protocol No. 1;
Holds that there is no need to examine the
complaint under Article 13 of the Convention.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
