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FIFTH
SECTION
CASE OF POBEGAYLO v. UKRAINE
(Application
no. 18368/03)
JUDGMENT
STRASBOURG
29
March 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 Pobegaylo 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,
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 6 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18368/03) 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 Vladislav Vasilyevich
Pobegaylo (“the applicant”), on 27 August 2001.
- The
applicant was represented before the Court by Mr Aleksandr
Vladimirovich Lesovoy, a lawyer, practicing in the town of
Bakhchisaray, the Autonomous Republic of Crimea (“the ARC”),
Ukraine. The Ukrainian Government (“the Government”) were
represented by their Agents, Mrs Z. Bortnovska, Mrs V.
Lutkovska and Mr Y. Zaytsev.
- On
24 October 2003 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 was born in 1971 and currently resides in the village of
Molodezhnoye, the ARC, Ukraine.
- On
1 May 1998 the applicant suffered serious bodily injuries in a
traffic accident caused by the negligent driving of a police officer.
- In
January 1999 the applicant instituted proceedings in the Kyivskyy
District Court of Simferopil against the Simferopil Branch of the
Main Department of the Ministry of Internal Affairs of Ukraine
claiming compensation for material and moral damage caused by the
accident. On 6 February 2001 the court awarded the applicant
2,288.93
Ukrainian hryvnias (“UAH”) in compensation for material
damage and legal aid, UAH 2,100 in compensation for the loss of
earnings and UAH 12,000 in compensation for moral damage. On 18
April 2001 the Supreme Court of the ARC upheld this decision in
respect of the compensation for material damage and remitted the case
for fresh consideration in respect of the compensation for the loss
of earnings and for moral damage.
- On
24 January 2002 the Bailiffs' Service instituted enforcement
proceedings for the judgment of 6 February 2001 in that part which
was upheld by the Supreme Court of the ARC and became final. On 19
April 2002 the enforcement proceedings were terminated on the ground
that the judgment should be enforced directly by the State
Treasury. On 16 August 2002 the judgment of 6 February
2001, as upheld by the Supreme Court, was enforced.
- In
the meantime, on 6 February 2002 the Kyivskyy District Court,
after fresh consideration of the applicant's claims concerning
compensation for the loss of earnings and moral damage, awarded the
applicant UAH 1,470
and UAH 8,400,
respectively. On 29 May 2002 the Court of Appeal of the ARC (former
Supreme Court of the ARC) upheld this judgment. The applicant
appealed against these judgments in cassation. The parties did not
submit any further information about these proceedings.
- By
a decree of 21 March 2003 the Ministry of Justice of Ukraine and the
State Treasury of Ukraine decided that all judgments which should be
enforced at the expense of the State Budget of Ukraine should be
enforced by the State Treasury of Ukraine. In May 2003 the applicant
instituted proceedings in the Pecherskyy District Court of Kyiv
requesting to invalidate this decree as its provisions had not
complied with the Law on Enforcement Proceedings. On 25 June 2003 the
Pecherskyy District Court of Kyiv found the decree invalid. On 30
October 2003 the Kyiv City Court of Appeal upheld this judgment. On
29 March 2006 the High Administrative Court of Ukraine rejected the
cassation appeal of the Ministry of Justice of Ukraine.
- In
July 2003 the applicant instituted proceedings in the Kyivskyy
District Court of Simferopil complaining about the decision of 19
April 2002 to terminate the enforcement proceedings and claiming
compensation for material and moral damage. On 22 December 2003 the
court found that the decision of 19 April 2002 was unlawful. The
court however did not allow the applicant's claims for compensation
because the judgment of 6 February 2001 in his favour was
enforced. On 5 April 2004 the Court of Appeal of the ARC upheld the
judgment of 22 December 2003. On 27 September 2006 the High
Administrative Court of Ukraine quashed the judgments of 22 December
2003 and 5 April 2004 and remitted the case for a fresh consideration
to the District Court.
- The
judgment of 6 February 2002 was enforced by instalments, the final
amount being paid on 11 February 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
- The
applicant complained of the lengthy consideration of his cases in the
court and of the lengthy enforcement of the judgments in his favour.
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
- In
respect of the applicant's complaint about the lengthy
non-enforcement of the judgments in his favour, the Government raised
objections regarding the applicant's victim status in respect of the
non-enforcement of the judgment of 6 February 2001 and
exhaustion of domestic remedies similar to those which the Court has
already dismissed in the case of Romashov v. Ukraine (cited
above, §§ 23-33). 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 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.
II. MERITS
- The Government maintained that the judgment of 6
February 2001 in the applicant's favour was enforced in full and the
length of its enforcement could not be considered as unreasonable. As
for the non-enforcement of the judgment of 6 February 2002 the
Government maintained that the Bailiffs' Service performed all
necessary actions and cannot be blamed for the delay. They further
stated that the judgment of 6 February 2002, which has not been
enforced at the time the Government submitted their observations,
would be enforced in full and that the present non-enforcement did
not breach Article 6 § 1 of the Convention.
- The applicant disagreed.
- The
Court reiterates that the court proceedings and the enforcement
proceedings are stages one and two in the total course of proceedings
(see, Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 197). Therefore, the enforcement proceedings should not
be dissociated from the action and the proceedings are to be examined
in their entirety (see, Estima Jorge v. Portugal, judgment of
21 April 1998, Reports of Judgments and Decisions 1998 II,
§ 35 and, as a recent authority, Sika
v. Slovakia, no. 2132/02, §§ 24-27, 13 June 2006).
19. The
Court notes that the consideration of the applicant's case by the
national courts lasted from January 1999 until 29 May 2002 when the
Court of Appeal upheld the judgment in the applicant's favour. The
applicant informed the Court that he had lodged a cassation appeal.
However, as the applicant failed to show that the cassation
proceeding are still pending, the Court considers that the
proceedings in the applicant's case ended with the full enforcement
of the judgments in the applicant's favour. The length of proceedings
in the judicial phase is therefore three years and four months and
there is no discernible period of inactivity which can be
attributed to the domestic courts.
- However, the judgments in the applicant's favour were
not enforced for more than one year and five months and for more than
one year and eight months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in similar circumstances (see, Chizhov
v. Ukraine, no. 6962/02, § 40-43, 17 May
2005; Zamula and Others v. Ukraine, no. 10231/02,
§ 43-45, 8 November 2005).
- Having examined all the materials 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.
- 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 UAH 100,000
in respect of non-pecuniary damage.
26. The Government contested the
applicant's claims, which they alleged were unsubstantiated and
exorbitant.
27. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the applicant EUR 300 in respect of his
non-pecuniary claim.
B. Costs and expenses
- The
applicant claimed UAH 9,000
for costs and expenses incurred in the Convention proceedings. He
presented four invoices for that sum from his lawyer.
- The
Government maintained that only those expenses which were actually
and necessarily incurred should be awarded.
- The
Court reiterates that, in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, among many other
authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 62, ECHR 1999-VIII).
- The
Court considers that these requirements have not been met in the
instant case. In particular, it notes that the case is not
particularly complex and the applicant was not required to be legally
represented. However, the applicant may have incurred some costs and
expenses for his representation before the Court.
Regard
being had to the information in its possession and to the above
considerations, the Court awards the applicant EUR 300 for costs
and expenses.
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, EUR 300 (three
hundred euros) in respect of non-pecuniary damage and EUR 300 (three
hundred euros) in costs and expenses, plus any tax that may be
chargeable;
(b) that
the above 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 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 29 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Peer Lorenzen
Deputy Registrar President
