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FIFTH
SECTION
CASE OF PTASHKO v. UKRAINE
(Application
no. 6974/04)
JUDGMENT
STRASBOURG
20
December 2007
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 Ptashko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6974/04) 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 Viktor Mykolayovych
Ptashko (“the applicant”), on 12 January 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
30 May 2006 the Court decided to communicate the application 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, a former judge of the Kirovograd Regional Court of Appeal,
was born in 1938 and lives in the city of Kirovograd.
- On
5 February 2004 the applicant retired, following a respective
decision of the Verkhovna Rada.
- In
November 2002 the applicant lodged a claim with the Pechersky
District Court of Kyiv against the Ministry of Finance, the Ministry
of Justice and the State Treasury, seeking payment of salary arrears
and life long judicial benefits (long-service bonus and welfare
benefits).
- On
16 December 2002 the Pechersky District Court of Kyiv allowed the
applicant's claim and ordered the Ministry of Finances and the State
Treasury of Ukraine to pay the applicant UAH 8,459.36.
- On
9 July 2003 the Kyiv City Court of Appeal upheld this judgment and it
became final.
- On
11 August 2003 the Bailiffs' Office of the Pechersky District of Kyiv
informed the applicant that he had to address the State Treasury of
Ukraine directly.
- On
10 November 2003 the State Treasury informed the applicant that there
were no funds available in the budget to enforce the judgment of
16 December 2002.
- On
5 November 2004 the applicant received the sum awarded to him by the
judgment of 16 December 2002.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are summarised in the judgment of
Zubko and Others v. Ukraine (nos. 3955/04, 5622/04,
8538/04 and 11418/04, §§ 33-43, 26 April 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained under Article 6 § 1 of the
Convention about the lengthy non-enforcement of the judgment of 16
December 2002 and about a violation of his right to the peaceful
enjoyment of possessions as guaranteed by Article 1 of Protocol No.
1. The Articles invoked, in so far as relevant, provide 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 or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government raised objections regarding exhaustion of domestic
remedies and admissibility ratione personae similar to those
already dismissed in a number of similar cases (see Shestakov v.
Russia (dec.), no. 48757/99, 18 June 2002 and
Skubenko v. Ukraine (dec.), no. 41152/98, 6 April
2004). The Court considers that these objections must be rejected for
the same reasons.
- 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 contended that the delay in enforcement of the judgment
given in the applicant's favour was reasonable and due to the lack of
funds in the State budget.
- The
applicant disagreed.
- The
Court notes that the judgment of 16 December 2002 remained unenforced
for almost sixteen months after it became final on 9 July 2003.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases raising issues similar to the present application (see, for
instance, Zubko and Others v. Ukraine, cited above,
Shmalko v. Ukraine, no. 60750/00, 20 July 2004 and
Voytenko v. Ukraine, no. 18966/02, 29 June 2004).
- 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 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 30,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage without specifying the amount or character of
pecuniary damage caused to him.
- The
Government argued that this claim was unsubstantiated and the amount
claimed exorbitant.
- The
Court considers that in spite of the fact that the applicant failed
to substantiate his pecuniary damage claim he may be considered to
have suffered some non-pecuniary damage as a result of the serious
violation found which cannot be compensated by the Court's finding of
a violation alone. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court considers it
reasonable to award the applicant the sum of EUR 5,000 in
non-pecuniary damage (see Zubko and Others v. Ukraine, §
74, cited above).
B. Costs and expenses
- In
the present case the applicant failed to submit any claims; 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 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, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, 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 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 20 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
