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VASILCHUK v. UKRAINE - 31387/05 [2009] ECHR 2047 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2047.html
Cite as:
[2009] ECHR 2047
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FIFTH
SECTION
CASE OF VASILCHUK v. UKRAINE
(Application
no. 31387/05)
JUDGMENT
STRASBOURG
10 December 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 Vasilchuk 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,
Isabelle Berro-Lefèvre,
judges,
Mykhaylo Buromenskiy, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31387/05) 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 Ivan Filippovich
Vasilchuk (“the applicant”), on 16 August 2005.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
The
applicant alleged, in particular, that his right to a fair and public
hearing within a reasonable time had been infringed on account of the
length of several sets of his civil proceedings and non-enforcement
of judgments given in his favour.
On
16 January 2009 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 1940 and lives in
Chornobayivka.
A. First set of proceedings against Oblsilkomungosp
On 16 August 1999 the applicant was dismissed from his
job at the Dzherelo enterprise (Чорнобаївське
сільське комунальне
господарство
«Джерело»),
a subsidiary of the municipal entity
Oblsilkomungosp (Херсонське
обласне
виробничо-кооперативне
об’єднання
сільського
комунального
господарства
«Облсількомунгосп»).
In
August 1999 the applicant challenged his dismissal and sought
compensation before the Dniprovsky District Court of Kherson.
On
22 August 2001 the court allowed the applicant’s reinstatement
claim and ordered Oblsilkomungosp to pay him 4,800 Ukrainian hryvnias
(UAH).
On
3 September 2001 the State Bailiffs’ Service instituted
enforcement proceedings.
On
6 November 2001 the Kherson Regional Court of Appeal upheld that
judgment.
On
7 December 2001 the Dzherelo enterprise was formally reorganised into
a private company, D.
On
several occasions the enforcement proceedings were discontinued for
various reasons and reopened following complaints by the applicant
that these decisions were unfair. It is unclear from the parties’
submissions whether the debt under the judgment was paid.
In
October 2005 the debtor entity was fined for failure to enforce the
judgment of 22 August 2001. Additionally, the State Bailiffs’
Service requested the local prosecutor to institute criminal
proceedings against the managers of Oblsilkomungosp, which request
was subsequently rejected.
On
7 October 2005 a decision was taken to initiate liquidation of
Oblsilkomungosp.
On
17 October 2005 the Bailiffs’ Service returned the enforcement
writ to the applicant unenforced.
On
3 July 2006 the Kherson Regional Commercial Court instituted
insolvency proceedings against Oblsilkomungosp and on 17 July 2006
declared the company insolvent.
On
4 March 2008 the Commercial Court further approved the liquidation
balance sheet and declared Oblsilkomungosp liquidated, following
which declaration on 19 March 2008 the company was deleted from the
State Company Register.
B. Second set of proceedings against Oblsilkomungosp
On
5 April 2002 the applicant instituted proceedings in the Suvorovskiy
District Court of Kherson against Oblsilkomungosp, seeking
compensation on account of its prolonged failure to reinstate him.
On
4 February 2005 the court, finding that the judgment of 22 August
2001 in the part concerning reinstatement had still not been
enforced, awarded the applicant UAH 8,081.70.
On
24 May 2005 the Kherson Regional Court of Appeal increased this sum
to UAH 17,206.
On an unspecified date the State Bailiffs’
Service instituted enforcement proceedings. On 23 December 2005 the
State Bailiffs’ Service terminated the enforcement proceedings
as the debtor had been liquidated.
The judgment of 4 February 2005, as amended by the
judgment of 24 May 2005, remains largely unenforced.
C. Third set of proceedings against Oblsilkomungosp
In
September 2005 the applicant instituted proceedings in the
Dniprovskiy District Court of Kherson against Oblsilkomungosp,
seeking compensation for its failure to reinstate him after
5 February 2005.
On
14 June 2006 the court, finding that the judgment of
22 August 2001 in the part concerning reinstatement had
still not been enforced, allowed his claim and awarded the applicant
UAH 9,495.75. The court also found that the applicant had
resigned on 14 June 2006 as a result of his employer’s
liquidation and ordered the liquidation commission to prepare
documents for the applicant’s pension.
On
2 November 2006 the Kherson Regional Court of Appeal quashed that
judgment in the part concerning the applicant’s resignation and
the liquidation commission’s obligation to prepare documents
for the applicant’s pension and gave a new judgment dismissing
these claims. The court further upheld the remainder of the judgment.
The
judgment at issue remains unenforced.
D. Proceedings against the local department of justice
and two local departments of the State Bailiffs’ Service
In
October 2005 the applicant instituted proceedings in the Dniprovskiy
District Court of Kherson against the local department of justice and
two local departments of the State Bailiffs’ Service, seeking
compensation for non-pecuniary damage incurred as a result of the
lengthy non-enforcement of the judgment of 22 August 2001.
In
a judgment of 23 December 2005 the court ordered the defendants
jointly to pay the applicant the total amount of UAH 6,000.
On
8 June 2006 the Kherson Regional Court of Appeal quashed that
judgment in the part concerning the obligation of the local
department of justice to pay the applicant compensation and rendered
a new one dismissing this claim and reducing thereby the amount
awarded to UAH 4,000.
On
an unspecified date the State Bailiffs’ Service instituted
enforcement proceedings.
On
23 November 2006 it returned the writs of enforcement to the
applicant owing to the debtors’ lack of funds.
On
14 December 2006 the Dniprovskiy District Court of Kherson amended
its previous judgment, awarding the applicant an additional amount of
UAH 40 in court fees.
The
judgment of 23 December 2005 as amended, remains unenforced.
E. Other proceedings
In
February 2002 the applicant instituted proceedings in the Dniprovsky
District Court of Kherson against Y. and G., the manager and his
deputy, of Oblsilkomungosp, seeking compensation for non-pecuniary
damage incurred as a result of the lengthy non-enforcement of the
judgment of 22 August 2001. In a final decision of 9 December 2003
the Supreme Court of Ukraine dismissed his claim. Later, the
applicant requested the courts to review the impugned judgment under
the extraordinary procedure, but in vain.
The
applicant also requested a local prosecutor to institute criminal
proceedings against the above-mentioned persons. However, on
7 October 2002 the prosecutor found no prima facie case for
instituting the proceedings as requested. The applicant appealed
against that decision but in a final decision of 20 April 2004 the
Supreme Court of Ukraine dismissed his appeal. Subsequently, the
applicant requested the courts to review the impugned decision under
the extraordinary procedure, but to no avail.
The
applicant further claimed compensation from the local prosecutor’s
office for its failure to enforce the judgment of 22 August 2001. On
20 December 2002 the Suvorovskiy District Court of Kherson found
against the applicant. On 27 March 2003 the Kherson Regional Court of
Appeal upheld that judgment.
In
November 2002 the applicant instituted proceedings in the
Komsomolskiy District Court of Kherson against Oblsilkomungosp and
the local State Administration, seeking to have the reorganisation of
Dzherelo declared void. On 5 August 2004 the court dismissed his
claim. On 10 November 2004 the Kherson Regional Court of Appeal
upheld that judgment. Subsequently, the applicant requested the
courts to review the impugned judgment under the extraordinary
procedure, but to no avail.
In
January 2003 the applicant instituted proceedings in the Suvorovskiy
District Court of Kherson against Oblsilkomungosp, seeking the
annulment of the reinstatement orders of 17 September 2001 and
24 April 2002. On 6 August 2003 the court dismissed his
claim. On 3 December 2003 the Kherson Regional Court of Appeal
upheld that judgment. Later, the applicant unsuccessfully requested
the courts on several occasions to review the impugned judgment under
the extraordinary procedure.
On
an unspecified date the applicant instituted proceedings in the
Suvorovskiy District Court of Kherson against the local department of
justice, seeking compensation for non-pecuniary damage incurred as a
result of the lengthy non-enforcement of the judgment of 22 August
2001. In a judgment of 15 May 2003 his claim was dismissed. The
applicant did not appeal against that judgment.
On
an unspecified date the applicant instituted proceedings in the
Supreme Court of Ukraine against the State of Ukraine and its
President. On 13 October 2006 the court dismissed his claim, stating
that it should have been lodged with a relevant district court.
In
December 2007 the applicant instituted proceedings in the Dniprovskiy
District Court of Kherson against Oblsilkomungosp and other persons,
seeking, inter alia, to have the judgment of 22 August 2001
reviewed under the extraordinary procedure. It appears that the
proceedings are still pending before that court.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law is summarised in the judgment of Vasylyev
v. Ukraine, (no. 10232/02, §§ 19-22,
13 July 2006).
THE LAW
I. COMPLAINTS
ABOUT THE LENGTH OF PROCEEDINGS AND THE NON-ENFORCEMENT OF JUDGMENTS
A. Admissibility
The
applicant complained that the length of the four sets of his
proceedings described in paragraphs 6-33 above, including their
enforcement stage, was incompatible with the guarantees set forth in
Article 6 § 1 of the Convention. Additionally, he
complained that the failure of the authorities to enforce the final
judgments given at the close of these proceedings breached his rights
under Article 1 of Protocol No. 1. Finally, he
complained that he had no effective remedies in respect of his
Convention complaints. The pertinent provisions read, in so far 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 ....”
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.”
The Government raised objections, contested by the
applicant, regarding exhaustion of domestic remedies, similar to
those which the Court has already dismissed in a number of other
cases where, as in the present case, the defendants were public
entities (see, for example, Vasylyev v. Ukraine,
no. 10232/02, §§ 29-33, 13 July 2006,
and Lizanets v. Ukraine, no. 6725/03, § 43,
31 May 2007). The Court considers that these objections
must be rejected for the same reasons.
The Court further observes that the applicant’s
enforcement proceedings cannot be dissociated from his court actions
(see, as a recent authority, Sika v. Slovakia,
no. 2132/02, §§ 23-26, 13 June 2006).
The
Court considers that the applicant’s complaints raise issues of
fact and law under the Convention and finds no ground to declare them
inadmissible. The Court must therefore declare them admissible.
B. Merits
1. The alleged violation of Article 6 § 1
of the Convention
In
their observations on the merits of the above complaint, the
Government contended that there had been no violation of
Article 6 § 1.
The
applicant disagreed.
The
Court reiterates that the applicant initiated the “determination”
of his “civil rights” within the meaning of Article 6 § 1
of the Convention by instituting four sets of judicial proceedings in
August 1999, April 2002, September and October 2005 respectively.
Last judgments in these proceedings were taken on 6 November 2001, 24
May 2005, 2 November 2006 and 14 December 2006
respectively. Therefore, the length of proceedings
in their judicial phase ranged from one year and two months to three
years and one month for two levels of jurisdiction.
From
the dates when the judgments in the applicant’s favour became
binding for enforcement the State entities became liable to ensure
the applicant’s reinstatement and pay him the judgments awards.
However, none of the judgments at issue had been fully enforced, the
periods of non enforcement ranging from three to eight years.
The
Court notes that the primary reason for the delay in the final
determination of the applicant’s civil rights in the present
case has been caused by the non-enforcement of final judgments given
in his favour. The Court has frequently found violations of Article
6 § 1 of the Convention in cases raising issues
similar to the one in the present case (see, for example, Sika,
cited above, § 35; Vasylyev, cited above, § 36;
and Kozachek v. Ukraine, no. 29508/04, § 33,
7 December 2006).
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.
Having
regard to its case-law on the subject, the Court considers that in
the instant case there has accordingly been a breach of Article 6 §
1.
2. Alleged violation of
Article 1 of Protocol No. 1 to the Convention
The
Court reiterates that its case-law has found that impossibility for
an applicant to obtain enforcement of a judgment in his or her favour
constitutes an interference with the right to the peaceful enjoyment
of possessions, as set out in the first sentence of the first
paragraph of Article 1 of Protocol No. 1 (see, among other
authorities, Burdov v. Russia, no. 59498/00, § 40,
ECHR 2002-III; Jasiūnienė v. Lithuania,
no. 41510/98, § 45, 6 March 2003; and Voytenko v.
Ukraine, no. 18966/02, §§ 53-55,
29 June 2004). The Court finds no ground to depart from its
case-law in the present case.
There
has, accordingly, been a violation of Article 1 of Protocol No. 1
of the Convention.
3. Alleged violation of Article 13 of the
Convention
The
Court concludes that the applicant did not have an effective domestic
remedy, as required by Article 13 of the Convention, whereby he could
have obtained a ruling upholding his right to have his claims finally
settled within a reasonable time, as set forth in Article 6 § 1
of the Convention (see, for example, Voytenko, cited above, §§
46-48, 29 June 2004, and Vasylyev, cited above,
§ 41). Accordingly, there has been a breach of this
provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant additionally complained that there had been other breaches
of his rights under Article 6 § 1 of the Convention,
infringement of his right to work, and invoked Articles 1, 2, 3,
5 § 1, 8, 14 and 17 of the Convention to the facts of
the present case.
Having carefully examined these 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 manifestly ill-founded, pursuant to Article 35 §§ 1,
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 4,032,000 euros (EUR) by way of compensation for
pecuniary damage allegedly sustained by him on account of
Oblsilkomungosp’s failure to reinstate him in his job. He also
claims EUR 6,060,000 in respect of non-pecuniary damage.
The
Government submitted that these claims were exorbitant and
unsubstantiated.
The
Court finds that the applicant sustained pecuniary damage equal to
the amount of the outstanding debts under the four judgments at issue
in the present case and rejects the remainder of the applicant’s
claim for pecuniary damage. The Court also awards the applicant EUR
2,600 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not lodge any claim under this head. The Court
therefore 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 UNANIMOUSLY
Declares the complaints under Article 6 § 1
of the Convention concerning length of four sets of proceedings
including their enforcement stage, under Article 1 of Protocol no. 1
and Article 13 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 of 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,
(i) the
unsettled debts under the judgments of 22 August 2001,
4 February 2005 (as amended on 24 May 2005), 14 June 2006
(as amended on 2 November 2006), 23 December 2005 (as amended on 8
June 2006 and 14 December 2006) as well as
(ii) EUR 2,600
(two thousand six hundred euros) in respect of non-pecuniary damage
plus any tax that may be chargeable on this amount,
to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts 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 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
