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ROTAR v. UKRAINE - 34126/05 [2009] ECHR 1559 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1559.html
Cite as:
[2009] ECHR 1559
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FIFTH
SECTION
CASE OF ROTAR v. UKRAINE
(Application
no. 34126/05)
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 Rotar v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, 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. 34126/05) 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 Sergiy Diamedovych
Rotar (“the applicant”), on 9 September 2005.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
On
8 September 2008 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
The
applicant was born in 1951 and lives in Oleksandriya.
The
State owns 26,1% of the share capital in the company Oleksandriyske
Avtotransportne Pidpryyemstvo 13506 (“the company”),
which is therefore subject to the moratorium
on the forced sale of property of entities in which the State holds
no less than 25% of the share capital, barring the attachment and
sale of its assets.
6. On
17 March 2004 the Kirovograd Regional Commercial Court started
insolvency proceedings against the company.
On
31 August 2004 the Oleksandriya Court ordered the company to pay the
applicant 7,021.29 Ukrainian hryvnas (UAH)
in salary arrears and compensation. The amount represented the salary
due to the applicant after deduction of income tax. The judgment
became final, but remains only partially enforced, the outstanding
debt being UAH 6,114.29.
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 lengthy non-enforcement of the
judgment of 31 August 2004. He alleged an infringement of Articles 6
§ 1 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention which provide, in so far
as relevant, as follows:
Article 6 § 1 of the Convention
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair
... hearing within a reasonable time by [a] ... tribunal ...”
Article 13 of the Convention
“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 or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
The
Government submitted that the applicant had failed to exhaust
domestic remedies, as required by Article 35 § 1 of the
Convention, since he had failed to challenge the Bailiffs' actions or
omissions before any court and had not applied to the Kirovograd
Regional Commercial Court for registration as a creditor in the
insolvency proceedings against the debtor company. They also
submitted that the State was not responsible for the non-enforcement
as 73.9% of the share capital of the debtor company was owned by
private entities.
The
applicant disagreed.
The
Court notes that similar objections by the Government as to
non-exhaustion of domestic remedies have already been discussed and
dismissed in a number of its previous judgments (see, for example,
Romashov v. Ukraine, no. 67534/01, §§ 23-32, 27 July
2004, and Trykhlib v. Ukraine, no. 58312/00, §§
36-42, 20 September 2005). It finds no reason to draw different
conclusion in the present case and it therefore rejects the
Government's objections.
Insofar
as the Government maintained that they could not be held responsible
for the lack of funds of a company in which the State only held 26.1%
of the share capital, the Court notes that the debtor company as such
attracted the application of the Law on the Introduction of a
Moratorium on the Forced Sale of Property 2001, barring the
attachment and sale of its assets on the ground that State property
was at stake. The applicant was therefore unable to enforce the debt
in the usual way because the company's property could not be sold.
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 lengthy failure to enforce the
judgment in the applicant's favour had been caused by the critical
financial situation of the debtor company. The Government further
maintained that the Bailiffs Service had taken all the necessary
steps and could not be blamed for the delay.
The
applicant disagreed.
The
Court observes that the delay in enforcement of the judgment in
question constitutes about five years and ten months so far.
The Court notes 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, Sokur v. Ukraine,
no. 29439/02, §§ 36-37, 26 April 2005, and
Anatskiy v. Ukraine, no. 10558/03, §§ 21-23,
13 December 2005).
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 and of
Article 1 of Protocol No. 1.
The
Court does not find it necessary in the circumstances of the present
case to examine under Article 13 of the Convention the same
complaint as under Article 6 § 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 the unpaid judgment debt due to him and EUR 6,000
in respect of non-pecuniary damage.
The
Government contested that claim.
In
so far as the applicant claimed the amount awarded to him by the
judgment at issue, the Court considers that the Government should pay
him the outstanding debt in settlement of his pecuniary damage. As to
the remainder of the applicant's just satisfaction claims, the Court,
making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant EUR 2,100 in
respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not submit any claims for costs and expenses;
therefore, the Court 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
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 that there has been a violation of Article
1 of Protocol No.1 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 judgment debt due to him;
EUR
2,100 (two thousand and one hundred euros) in respect of
non-pecuniary damage,
plus
any tax that may be chargeable;
(b) that
the latter amounts shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the latter 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
