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FIFTH
SECTION
CASE OF TIKHONCHUK v. UKRAINE
(Application
no. 16571/03)
JUDGMENT
STRASBOURG
14
December 2006
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 Tikhonchuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16571/03) 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 Sergey Viktorovich
Tikhonchuk (“the applicant”), on 24 April 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska, succeeded by Mr Y. Zaytsev.
- On
26 May 2005 the Court decided to communicate the complaint
under Article 6 § 1 of the Convention concerning the
non-enforcement of the judgments in the applicant's favour 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 1977 and lives in Nova Kakhovka, the Kherson
region. He is a former employee of the State-controlled
OJSC “Pivdenelektromash” (“the Company,”
ВАТ
“Південелектромаш”).
- The
background facts for the case are described in the case of Anatskiy
v. Ukraine (no. 10558/03, §§ 5-8, 13
December 2005).
A. First set of proceedings
- On
7 February 2001 the Nova Kakhovka Court (Новокаховський
міський
суд Херсонської
області)
ordered the Company to pay the applicant UAH 3,009
in salary arrears. This judgment became final.
- According
to the Government, the applicant never submitted the enforcement writ
in respect of this judgment for enforcement.
- The
applicant presented a copy of the letter of the Nova Kakhovka
Bailiffs' Service (“the Bailiffs,” Відділ
Державної
виконавчої
служби
Новокаховського
міського
управління
юстиції)
of 6 May 2005 advising him that the enforcement proceedings
in respect of the judgment of 7 February 2001 had been
instituted on 26 February 2002.
- Additionally,
the applicant presented a copy of the Bailiffs' decision of
1 July 2002, by which they returned him the enforcement
writ in respect of the above judgment unenforced. In particular, the
Bailiffs referred to the impossibility of the enforcement in view of
the debtor's lack of funds, the pending bankruptcy proceedings
against it and the holding of its assets in a tax lien.
- The
judgment of 7 February 2001 remains unenforced to the
present day.
B. Second set of proceedings
- On
29 December 2002 the Nova Kakhovka Court ordered the
Company to pay the applicant UAH 3,359
in salary arrears. This judgment became final and on 13 February 2003
the Bailiffs instituted enforcement proceedings in its respect.
- The
judgment of 29 December 2002 remains unenforced to the
present day.
THE LAW
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004)
and Trykhlib v. Ukraine (no. 58312/00, §§
25-32, 20 September 2005).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgments of 7 February 2001 and 29 December 2002.
He invoked Article 6 § 1 of the Convention, which
provides, 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. ...”
I. ADMISSIBILITY
A. The complaint about the non-enforcement of the
judgment of 7 February 2001
- The
Government contended that the applicant had never submitted the
enforcement writ in respect of the judgment of 7 February 2001
to the Bailiffs and cannot, therefore, claim to be the victim of the
State authorities' failure to enforce the judgment at issue.
- The
applicant did not comment on this point.
- The
Court recalls that the applicant presented documents in evidence that
the Bailiffs had instituted the enforcement proceedings in respect of
the judgment of 7 February 2001 and had subsequently
terminated them due to the Company's lack of funds (see paragraphs
8-9 above). The Government did not comment on these documents and did
not present any countervailing evidence. Therefore, the Court
dismisses the Government's preliminary objection.
B. The complaint about the non-enforcement of the
judgment of 29 December 2002
- The Government raised objections regarding exhaustion
of domestic remedies similar to those which the Court had already
dismissed (see Sokur v. Ukraine (dec.), no. 29439/02,
16 December 2003 and Trykhlib v. Ukraine, cited
above, §§ 38-43). The Court considers that these
objections must be rejected for the same reasons.
C. Conclusion
- The
Court concludes that the applicant's complaints under Article 6 § 1
of the Convention about the delay in the enforcement of the judgments
of 7 February 2001 and 29 December 2002 raise
issues of fact and law under the Convention, the determination of
which requires an examination on the merits. It finds no ground for
declaring these complaints inadmissible. The Court must therefore
declare them admissible.
II. MERITS
- In
their observations on the merits of the applicant's claims, the
Government contended that there had been no violation of
Article 6 § 1.
- The
applicant disagreed.
- The
Court notes that the judgment of 7 February 2001 has
remained unenforced for the period exceeding five years and ten
months and the judgment of 29 December 2002 - for the
period exceeding three years and eleven months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases, including the cases
concerning the same State-controlled debtor - the OJSC
“Pivdenelektromash” (see, for instance, Trykhlib v.
Ukraine, cited above, §§ 52-53; Chernyayev v.
Ukraine, no. 15366/03, §§ 19-20, 26 July 2005
and Anatskiy v. Ukraine, cited above, §§ 21-23).
- 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.
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 the unsettled judgments debts due to him and
further pecuniary and non-pecuniary damage without specifying the
exact amounts.
- The
Government maintained that the applicant has not substantiated his
claims.
- The
Court finds that the Government should pay the applicant the
outstanding judgments debts still owed to him, which would constitute
full and final settlement of his claim for pecuniary damage. The
Court also considers that the applicant must have sustained
non-pecuniary damage, and awards him EUR 2,300 in this respect.
B. Costs and expenses
- The
applicant did not submit 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 application admissible;
- Holds that there has been a violation of
Article 6 § 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 unsettled
debt still owed to him, as well as EUR 2,300 (two thousand three
hundred euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(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.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
