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SOLOMATIN v. UKRAINE - 8191/04 [2009] ECHR 1565 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1565.html
Cite as:
[2009] ECHR 1565
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FIFTH
SECTION
CASE OF SOLOMATIN v. UKRAINE
(Application
no. 8191/04)
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 Solomatin 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,
Mark
Villiger,
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. 8191/04) 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 Konstantin Vasilyevich
Solomatin (“the applicant”), on 11 February 2004.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
22 October 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 1979 and lives in the city of
Kyiv, Ukraine.
The applicant is a former military serviceman. In
October 2001 he was transferred to the reserve.
On an unspecified date the applicant instituted
proceedings in the Tsentralno-Gorodskoy District Court of Gorlovka
(“the court”) against the Tsentralno-Gorodskoy District
Military Enlistment Office of Gorlovka (“the enlistment
office”) claiming payment of a single-payment allowance due to
him, compensation for non-pecuniary damage and 51 Ukrainian hryvnias
(UAH) in compensation for the court fees.
While the proceedings were still pending, the
enlistment office paid the allowance. Therefore, the applicant
withdrew his claims regarding payment of the allowance and
compensation for non-pecuniary damage.
On 24 April 2003 the court awarded the applicant UAH
51
in compensation for the court fees, to be paid by the enlistment
office. The judgment was not appealed against and became final.
On an unspecified date the Tsentralno-Gorodskoy
District Bailiffs' Service of Gorlovka (“the Bailiffs'
Service”) initiated enforcement proceedings in respect of that
judgment.
On 15 July 2003 the Bailiffs' Service suspended
enforcement proceedings since the court had not indicated the
debtor's account in the enforcement writ.
Later the enlistment office was closed down. The
latter's debts were transferred to its successor, the Gorlovsky City
Enlistment Office. On 4 May 2006 the court granted the
applicant's request and changed the debtor in the enforcement
proceedings. The applicant re-lodged the enforcement writ with the
Bailiffs' Service.
The judgment remains unenforced.
II. RELEVANT DOMESTIC LAW
The relevant domestic law is summarised in the
judgment of Romashov v. Ukraine (no.
67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
TO THE CONVENTION
14. The
applicant complained that the judgment given in his favour had not
been enforced. He relied on Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1, which read 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.....”
A. Admissibility
The Government contended that the applicant had not
exhausted domestic remedies as he had not challenged the Bailiffs'
actions. They also maintained that the applicant, while re-submitting
the enforcement writ, had failed to comply with the procedural
formalities prescribed by law. They asserted in this regard that he
was no longer interested in the enforcement of the judgment in
question.
The
applicant disagreed.
As
regards the Government's objection that the applicant failed to
re-submit the enforcement writ, the Court notes that in the instant
case the applicant has obtained a final and enforceable judgment
against the State, namely the enlistment office. The Court reiterates
that it is inappropriate to require an individual who has obtained a
judgment against the State at the end of legal proceedings to then
bring enforcement proceedings to obtain satisfaction (see Lizanets
v. Ukraine, no. 6725/03, § 43, 31 May 2007 and the
case-law referred to therein). In respect to the Government's
objection that the applicant had failed to exhaust domestic remedies,
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). The Court
considers that the present objections must be rejected for the same
reasons.
The
Court concludes that the applicant's complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 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.
B. Merits
In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in respect of the
applicant. They further maintained that the State authorities had
taken all necessary measures to enforce the judgment in question.
The
applicant disagreed.
The
Court observes that the judgment given in the applicant's favour
remains unenforced.
The
Court has frequently found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the
Convention in cases raising similar issues to the ones in the present
case (see Romashov v. Ukraine, cited above, § 46,
and Voytenko, cited above, §§ 43 and 55).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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 Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained that the judge sitting in his case lacked
impartiality and that she was not independent. Lastly, he complained
that the police refused to employ him. The applicant did not refer to
any Article of the Convention or Protocols thereto.
Having
carefully examined the applicant's submissions in the light of all
the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention. It follows that this part of
the application must be declared inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. 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 payment of the outstanding debt under the judgment
given in his favour. He further claimed 2,000 euros (EUR) in respect
of non-pecuniary damage.
The
Government did not object to paying the outstanding debt under the
judgment given in the applicant's favour. They contested the
applicant's claim in respect of non-pecuniary damage.
The
Court finds that the Government should pay the applicant the
outstanding judgment debt by way of compensation for pecuniary
damage.
As
to the sum claimed by the applicant in respect of non-pecuniary
damage, the Court considers that in the circumstances of the case a
mere finding of a violation constitutes sufficient just satisfaction.
B. Costs and expenses
The
applicant lodged no claim in respect of costs and expenses.
Therefore, the Court makes no award under this head.
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 complaints under Article 6 § 1
and Article 1 of Protocol No. 1 concerning the non-enforcement of the
judgment of 24 April 2003 admissible and the remainder of the
application inadmissible;
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:
(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 owed to the applicant under the judgment of the
Tsentralno-Gorodskoy District Court of Gorlovka of 24 April 2003 by
way of compensation for 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;
(c)
that the finding of a violation
constitutes sufficient just satisfaction for any non-pecuniary damage
which the applicant may have suffered;
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
