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FIFTH
SECTION
CASE OF GORIN v. UKRAINE
(Application
no. 24380/03)
JUDGMENT
STRASBOURG
12
July 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 Gorin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 19 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24380/03) 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 Aleksey Yegorovich
Gorin (“the applicant”), on 18 July 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeriya Lutkovska.
- On
30 March 2005 the Court decided to communicate the complaint
concerning the non-enforcement of the judgment 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 1938 and lives in the town of Novogrodivka,
Donetsk region.
- On
9 April 1999 the Novogrodivka Court ordered the State-owned mining
company “1/3 Novogrodivska” (hereinafter “the
Company”) to pay the applicant UAH 1487,17
in salary arrears and compensation for damages. The writ of execution
was issued on the same day.
- On
19 August 1999 and 20 February 2001 the applicant was paid,
respectively, UAH 169,86 and UAH 200 (total of UAH 369,86).
- On
30 August 2000, 14 May 2001 and 23 December 2002 the Donetsk
Commercial Court, in the course of bankruptcy proceedings, prohibited
attaching the Company's property and accounts.
- In
January 2003 the applicant instituted proceedings against the
Novogrodivka Department of the State Bailiffs' Service for its
alleged inactivity.
- On
3 March 2003 the Novogrodivka Court rejected this complaint. The
court found that no fault was attributable to the bailiffs as the
judgment at issue was not executed due to the bankruptcy proceedings
pending against the Company. It also found that the Law of
29 November 2001 “On the Introduction of a Moratorium
on the Forced Sale of Property” was applicable to the case.
- On
5 June 2003 the Donetsk Regional Court of Appeal upheld this
decision. On 31 August 2004 the Supreme Court rejected the
applicant's cassation appeal.
- On
13 January 2004 the Company was replaced by the State-owned company
“Selidivvugillia” as debtor in the enforcement
proceedings and the writ of execution in the applicant's case were
transferred from the Novogrodivka to the Selidove Department of the
State Bailiffs' Service.
- On
25 November 2004 the amount of UAH 1,083.31
was transferred to the applicant's bank account.
- The
judgment of 9 April 1999 remains partly unenforced, the outstanding
debt being UAH 34.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The applicant complained under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 about the lengthy
non-enforcement of the judgment of the Novogrodivka Court of 9 April
1999. The above provisions read, 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 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 ....”
A. Admissibility
- The Government raised objections, contested by the
applicant, regarding exhaustion of domestic remedies similar to those
already dismissed in a number of the Court's judgments regarding
non-enforcement against the State-owned companies (see e.g. Sokur
v Ukraine (dec.), no. 29439/02, 16 December 2003
and Trykhlib v. Ukraine, no. 58312/00, §§ 39-43,
20 September 2005). The Court considers that these objections must be
rejected for the same reasons
- The Court concludes that the applicant's complaints
under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 raise issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring these complaints
inadmissible. The Court must therefore declare them admissible.
B. Merits
- In their observations on the merits of the applicant's
complaints, the Government contended that there had been no violation
of the provisions the Convention.
- The
applicants disagreed.
- The
Court notes that the judgment of the Novogrodivka Court of 9 April
1999 remains partly unenforced for eight years and two months.
- The
Court recalls that it has already found violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in a number of
similar cases (see, for instance, Sokur v. Ukraine, cited
above and Mykhaylenky and Others v. Ukraine, nos. 35091/02,
35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02,
38296/02 and 42814/02, § 45, ECHR 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Articles 2 § 1 and 4 § 1
of the Convention about his low standard of living.
- However, in the light of all the materials in its
possession, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols (see Sokur v. Ukraine, cited above).
- It
follows that this part of the application must be declared
inadmissible as being 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 4,558 euros (EUR) in respect of pecuniary and EUR
6,000 in respect of non-pecuniary damage.
- The
Government contested this claim as unsubstantiated.
- The
Court finds that the Government should pay the applicant the
outstanding debt still due to him under the judgment at issue.
Additionally, making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicant EUR 2,600 in respect of non-pecuniary damage.
B. Costs and expenses
- The applicants did not submit any separate 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 complaint concerning the
non-enforcement of the judgment in the applicant's favour 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;
- 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 judgment debt still owed to him, as well as
EUR 2,600 (two thousand and six 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
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 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
