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STOROZHUK v. UKRAINE - 2387/06 [2009] ECHR 1558 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1558.html
Cite as:
[2009] ECHR 1558
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FIFTH
SECTION
CASE OF STOROZHUK v. UKRAINE
(Application
no. 2387/06)
JUDGMENT
STRASBOURG
15 October
2009
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 Storozhuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2387/06) 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 Petro Antonovych
Storozhuk (“the applicant”), on 31 December 2005.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
20 May 2008 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1951 and lives in the town of Chervonograd,
Ukraine.
On
10 November 2003 the Chervonograd Court ordered the State company
Lvivvugilllya to pay the applicant 42,000
Ukrainian hryvnias (UAH) in compensation for the non-pecuniary damage
caused by the company's failure to provide him with an apartment.
On
17 December 2003 the State Bailiffs' Service initiated enforcement
proceedings in respect of the above judgment.
On
30 December 2005 the enforcement proceedings were terminated in
accordance with the Law of Ukraine on Measures to ensure the Stable
Operation of Fuel and Energy Sector Enterprises.
The
judgment given in the applicant's favour remains unenforced.
II. RELEVANT DOMESTIC LAW
The Law of 23 June 2005 on Measures to ensure the
Stable Operation of Fuel and Energy Sector Enterprises (Закон
України „Про
заходи, спрямовані
на забезпечення
сталого функціонування
підприємств
паливно-енергетичного
комплексу”
від 23 червня
2005 року) introduced a new mechanism for
the payment and amortisation of companies' debts for energy
resources. It also introduced a special register of companies
concerned by debt payments and amortisation under its provisions. A
company's inclusion on the register suspends any enforcement
proceedings against it. The domestic courts will also dismiss any
request to initiate insolvency or liquidation proceedings against the
company in question. By the most recent amendment to the Law, enacted
on 16 December 2008, the effect of the debt payment and amortisation
programme was extended until 1 January 2011.
The
remainder of the relevant 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 AND ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained about the non-enforcement of the judgment given
in his favour and the lack of an effective remedy in that respect. He
invoked Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1, 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 ... hearing within a
reasonable time by [a] ... tribunal ...”
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.”
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 contended that the applicant had not exhausted domestic
remedies as he had not challenged the bailiffs' actions.
The
applicant disagreed.
The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (see Voytenko v.
Ukraine, no. 18966/02, §§ 27-31, 29 June 2004, and
Shmalko v. Ukraine, no. 60750/00, §§ 35-39, 20
July 2004).
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
In
their observations on the merits the Government advanced the
arguments they have frequently put forward in cases like the present
one (see, for example, Sokur, cited above, § 28).
The
applicant disagreed.
The
Court points out that it has already found violations of
Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1 in cases like the
present application (see Sokur, cited above, § 37;
Shmalko, cited above, §§ 47 and 57, and Voytenko,
cited above, §§ 43, 48 and 55).
Having
examined all the material submitted to it, 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 Articles 6 § 1
and 13 of the Convention and of Article 1 of Protocol No. 1.
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 70,014
Ukrainian hryvnias (UAH) in respect of pecuniary damage. This amount
included the unsettled court award, adjusted to take into account
inflation rates. However, the applicant did not provide detailed
calculations of these losses.
The
Government contested the applicant's claim.
The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment at issue. It dismisses
the remainder of the applicant's claim for pecuniary damage as
unsubstantiated (see, a contrario, Maksimikha v.
Ukraine, no. 43483/02, §§ 27-30,
14 December 2006).
B. Costs and expenses
The
applicant did not submit any claim under this head. The Court
therefore makes no award in this connection.
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 has been a violation of Article
1 of Protocol No. 1 to the Convention;
Holds that there has been a violation of 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, the outstanding
debt under the judgment of the Chervonograd Court of 10 November 2003
in respect of pecuniary damage;
(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 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
