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FIFTH
SECTION
CASE OF REDKA v. UKRAINE
(Application
no. 17788/02)
JUDGMENT
STRASBOURG
21
June 2007
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention.
In the case of Redka 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 29 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17788/02) 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 Vasyl Petrovych
Redka (“the applicant”), on 26 March 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
13 December 2005 the Court decided to communicate the
complaints under Article 6 § 1 and Article 13 of the Convention
concerning the length of the proceedings, including their enforcement
stage, 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 1967 and lives in Kyiv.
A. Judicial proceedings on account of the applicant's
reinstatement
- In
August 2000 the applicant was dismissed from his position as a senior
tax inspector (старший
державний
податковий
інспектор)
of the Moskovsky District Tax Inspectorate of Kyiv (the “Moskovsky
Inspectorate,” Державна
податкова
інспекція у
Московському
районі м. Києва).
On 6 September 2000 he instituted civil proceedings in the
Moskovsky District Court of Kyiv (Московський
районний
суд м. Києва)
seeking his reinstatement, compensation for lost income and moral
damage. Subsequently the proceedings were transferred to the
Vatutinsky District Court of Kyiv
(the “District Court,” Ватутінський
районний суд
м. Києва).
- On
2 August 2001 the District Court ordered the applicant's
reinstatement and awarded him 4,040.41 Ukrainian hryvnyas (“UAH”)
in compensation for lost income and UAH 600
in compensation for moral damage. Pursuant this judgment, the
applicant was reinstated and paid the compensation equivalent to his
one-month income.
- On
26 September 2001 the applicant resigned from the civil
service.
- On
5 November 2001 the Kyiv City Court of Appeal (“the Court of
Appeal,” Апеляційний
суд м. Києва)
upheld the judgment of 2 August 2001 in part ordering the
applicant's reinstatement and recalculated the amount of compensation
due to him. In particular, the Court of Appeal awarded the applicant
UAH 6,031.65
in compensation for lost income and UAH 200
in compensation for moral damage.
- On
30 November 2001, due to the mergers of the city administrative
districts, the Moskovsky Inspectorate was liquidated and replaced by
the Golosiyivsky District Inspectorate (the “Golosiyivsky
Inspectorate”; Державна
податкова
інспекція у
Голосіївському
районі м. Києва).
- On
7 March 2002 the Supreme Court rejected the requests for
leave to appeal in cassation submitted by the Moskovsky
(Golosiyivsky) Inspectorate and the applicant's representative.
B. Enforcement proceedings
- On
20 December 2001 the District Court issued an enforcement writ for
the judgment of 5 November 2001 indicating the Moskovsky
Inspectorate as the debtor.
- On
21 December 2001 the applicant submitted the writ to the Golosiyivsky
District Bailiffs' Service (the “Bailiffs”; Відділ
Державної
виконавчої
служби Голосіївського
районного
управління
юстиції м. Києва).
- On
8 January 2002 the Bailiffs initiated the enforcement proceedings and
on 31 January 2002 submitted an invoice to the National Bank
(Національний
Банк України).
- Having
received no response from the National Bank, on 12 April and
9 July 2002 the Bailiffs requested the District Court to
issue a duplicate enforcement writ. Having received a duplicate writ
without a seal on 12 August 2002, the Bailiffs returned it
to the District Court for validation. On 26 March 2003 the District
Court informed the applicant that it had never received the returned
duplicate writ.
- On
13 May 2003 the Bailiffs requested the District Court to issue
another duplicate writ. On 4 June 2003 the District Court fulfilled
this request, indicating the Moskovsky Inspectorate as the debtor.
- On
6 August 2003 the Golosiyivsky Inspectorate paid the
applicant UAH 6,031.65
in compensation for lost income due to him by the judgment at issue
(97% of the judgment debt).
- On
14 August 2003 the State Treasury (Відділення
Державного
Казначейства
у Голосіївському
районі
м. Києва)
rejected the Bailiffs' request to pay the remainder award of UAH 200
(3% of the debt) in compensation for moral damage, having noted that
the Moskovsky Inspectorate had been liquidated in 2001.
- On
18 August 2003 the Bailiffs terminated the enforcement proceedings on
account of the debtor's liquidation and returned the writ to the
applicant informing him of his right to re-introduce it at a later
date.
- According
to the Government's submissions, in June 2006 the remainder
judgment debt of UAH 200
was transferred to the Bailiffs' account. On 30 June and
25 September 2006 the Bailiffs requested the applicant to
provide his banking details to effect the money transfer, but he
never responded.
II. RELEVANT DOMESTIC LAW
20. The
relevant domestic law is summarised in the judgment of Vasylyev
v. Ukraine, (no. 10232/02, §§ 19-22,
13 July 2006).
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that after the case had been communicated to the
respondent Government, the applicant introduced a new complaint about
having been allegedly harassed in 2001 by certain officers of the
Organized Crime Police Department in connection with his proceedings
against the Tax Inspectorate. He presented copies of his complaints
about these officers filed with the national authorities and their
respective answers. Neither the complaints, nor the answers have
mention of the Tax Inspectorate or the proceedings against it and,
instead, refer to the applicant's questioning in connection with a
criminal investigation against third persons.
- In
the Court's view, the new complaint is not an elaboration of the
applicant's original complaints to the Court, lodged more than three
years earlier and which had been communicated to the respondent
Government. The Court considers, therefore, that it is not
appropriate now to consider it (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ADMISSIBILITY
A. Complaints about the length of proceedings including
their enforcement stage
- The
applicant complained that the length of the civil proceedings in
respect of his reinstatement and compensation claims, including their
enforcement stage, was incompatible with the “reasonable time”
requirement of Article 6 § 1 of the Convention and that he had
no effective domestic remedies for this complaint as required by
Article 13 of the Convention. The Convention provisions in question
provide, 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. ...”
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 submitted that Article 6 § 1 was
applicable to the proceedings at issue. They submitted no further
observations on the admissibility of the applicant's complaints.
- The
Court recalls that the proceedings at issue concerned the applicant's
reinstatement claim, which, pursuant the national law, was treated as
an ordinary labour dispute. Under the general rule, such proceedings
are presumed to fall within the ambit of Article 6 § 1,
unless the Government presents a valid argument to the contrary (see
Vilho Eskelinen and Others v. Finland [GC], no. 63235/00,
§§ 62-64, 19 April 2007). As the Government presented
no such argument, the Court is satisfied that Article 6 § 1
applies to the circumstances of the present case.
- The Court further observes that the applicant's
enforcement proceedings cannot be dissociated from his court action
(see, as a recent authority, Sika v. Slovakia,
no. 2132/02, §§ 23-26, 13 June 2006) and that the
applicant's complaints under Articles 6 § 1 and
13 of the Convention about their unreasonable length and the absence
of a remedy in that respect raise issues of fact and law under the
Convention. The Court finds that these complaints are not
inadmissible on any ground and their determination requires an
examination on the merits.
B. Other complaints
- The
applicant additionally complained that the amount of compensation
awarded to him was inadequate and that the proceedings as a whole
were generally unfair. In his submissions, he relied on
Articles 6 § 1, 8, 14, 17 and 41
of the Convention.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession and insofar as the matters complained
of are within its competence, the Court finds that there is no
appearance of a violation of the rights and freedoms set out in the
Convention or its protocols.
- 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. MERITS
A. The applicant's complaint under Article 6 § 1
of the Convention
- In
their observations on the merits of the applicant's complaints, 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 and obligations” within the meaning
of Article 6 § 1 of the Convention by his civil action in
September 2000. This action eventually led to the adoption of a
court judgment of 5 November 2001, which became final on
7 March 2002. Therefore, the length of
proceedings in their judicial phase was one year and six
months, during which period the applicant's claims were considered by
the courts of three levels of jurisdiction. Subsequently, on
21 December 2001 the applicant requested the initiation of
the enforcement proceedings, but was unable to collect the full
amount of the judgment debt due to him until July 2006, when,
according to the Government, last, though minor outstanding amount
was made available to him. This information was not disputed by the
applicant. Therefore, the enforcement stage of the proceedings lasted
for another four years and six months.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court notes that the delay in the proceedings at issue was mostly
caused by the non-enforcement of a final judgment given in the
applicant's 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, e.g., Sika v. Slovakia,
cited above, § 35, and Vasylyev v. Ukraine,
no. 10232/02, § 36, 13 July 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 the length of the proceedings, in particular
in their enforcement stage, was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
B. The applicant's complaint under Article 13 of the
Convention
- In
their observations on the merits of the applicant's complaints, the
Government contended that there had been no violation of Article 13.
- The
applicant disagreed.
- The
Court notes that it has already found a violation of Article 13
of the Convention in cases raising issues similar to the present
application (see, for instance, Vasylyev v. Ukraine, cited
above, § 41). The Court finds no ground to depart from its
case-law in the present case.
- There
has, accordingly, been a violation of Article 13 of the
Convention.
IV. 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 146,900 (EUR 23,838) in respect of
pecuniary and UAH 51,033,500 (EUR 8,332,285) in respect of
non pecuniary damage inflicted by violation of his rights under
Articles 6 § 1, 8, 13, 14, 17 and 41 of the
Convention.
- The
Government submitted that there is not causal link between the
applicant's complaint about the length of the proceedings and the
damage alleged.
- The
Court recalls that the applicant had received 97% of the judgment
debt before the case was communicated to the Government, and the
remainder debt of UAH 200 (EUR 32.70) had been made
available to him by July 2006. Having regard to the
circumstances of the case and making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court
awards the applicant EUR 200 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed UAH 43,700 (EUR 7,134.94) for legal
fees and other expenses incurred in connection to his domestic and
Convention proceedings. He presented a copy of his contract of
12 August 2001 with Mr S., a licensed advocate,
pursuant which the applicant had to pay a monthly fee of at least
UAH 500 (EUR 106.20) for representation in his
reinstatement case.
- The
Government noted that the applicant did not present any proof that
the claimed expenses had been actually and necessarily incurred.
- The Court recalls that the case at issue is of no
particular complexity, the applicant had no representative in his
Convention proceedings and was granted leave to use the Russian
language. However, the applicant may have incurred some costs and
expenses in connection with his Convention complaints, particularly,
for representation before domestic Bailiffs and other authorities.
Regard being had to the information in its possession and the Court's
case-law (see e.g., Romanchenko v. Ukraine, no. 5596/03,
§ 38, 22 November 2005), the Court awards the
applicant EUR 300 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 applicant's complaints under
Article 6 § 1 and 13 of the Convention concerning the
length of the civil proceedings, including their enforcement stage,
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
13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention,
EUR 500 (five hundred euros) in respect of non-pecuniary damage
and costs and expenses 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;
- Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in English, and notified in writing on 21 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
