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FIFTH
SECTION
CASE OF KRUTKO v. UKRAINE (no. 2)
(Application
no. 33930/05)
JUDGMENT
STRASBOURG
27
November 2008
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 Krutko v. Ukraine (no. 2),
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy Section
Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33930/05) 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 Nikolayevich
Krutko (“the applicant”), on 7 July 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
13 December 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
- The
applicant was born in 1975 and lives in Kharkiv.
- In
August 2003 the applicant instituted proceedings in the Moskovskyy
District Court of Kharkiv against the State-owned company Kharkivskyi
Elektromekhanichnyi Zavod, seeking compensation for loss of a part of
his salary due to its delayed payment, and compensation for pecuniary
and non-pecuniary damage caused by the respondent's failure to pay
his salary in due time.
- On
3 November 2003 the court awarded the applicant 634.03 Ukrainian
hryvnas (UAH)
in compensation for loss of a part of his salary due to the delay in
its payment.
- On
25 December 2003 the Kharkiv Regional Court of Appeal partially
modified that judgment and awarded the applicant an additional UAH
1,072.62
in compensation for non-pecuniary damage. On the same date the
judgment became enforceable.
- In
January 2004 the applicant and the respondent company appealed in
cassation.
- In
December 2004 the applicant requested the Moskovskyy District Court
to issue a writ of execution in his favour.
- The
court refused to issue a writ of execution on the ground that the
case file had been sent to the Supreme Court.
- On
7 April 2006 the Supreme Court upheld the judgment of the court of
appeal.
- On
20 July 2006 the applicant received the writ of execution.
- On
27 July 2006 the applicant submitted it to the Bailiffs.
- On
12 September 2006 the applicant received the amount awarded.
THE LAW
- Relying
on Articles 6 § 1 and 13 of the Convention the
applicant complained that the consideration of his case by the courts
had been lengthy, as had the non-enforcement of the judgment of 3
November 2003, as amended by the decision of the Kharkiv Regional
Court of Appeal of 25 December 2003. The provisions relied on by
the applicant read, in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... , everyone is entitled to a ... hearing within
reasonable time by [a] ... tribunal ...”
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.”
I. ADMISSIBLITY
- The
Government raised objections regarding admissibility ratione
personae similar to those already dismissed in a number of
similar cases (see, for instance, 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 applicant's complaints are
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes they are not inadmissible on any
other grounds. The application must therefore be declared admissible.
II. MERITS
- The
Government contended that the delay in the enforcement of the
judgment in the applicant's favour was not attributable to the State
and that the applicant had not been interested in having the judgment
enforced, given that he had failed to obtain and lodge with the
Bailiffs a writ of execution for the initiation of enforcement
proceedings in respect of that judgment before his case had been
referred to the Supreme Court.
- The
Court reiterates that court proceedings and enforcement proceedings
are stages one and two in the total course of proceedings (see
Scordino v. Italy (no. 1) [GC], no. 36813/97, § 197,
ECHR 2006-...). Therefore, enforcement proceedings should not be
dissociated from an action and 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).
- The
Court notes that the applicant's complaint about the length of the
court proceedings in his case is limited to the general statement
that his case had been considered by the court for about two years
and ten months.
- The court proceedings started in August 2003 and were
completed by the final decision of the Supreme Court on 7 April 2006.
The length of proceedings in the judicial phase is therefore two
years and eight months for three levels of jurisdiction and there is
no discernible period of inactivity which can be attributed to the
domestic courts.
-
As regards State responsibility for the delay in the enforcement of
the judgment in the applicant's favour, the
Court observes that the debtor company was owned by the State. The
company therefore attracted the application of the Law “on the
Introduction of a Moratorium on the Forced Sale of Property”,
barring the attachment and sale of its real
estate and capital assets. The
Court further notes that in the Ukrainian legal system neither the
courts nor the Bailiffs have the power to overrule the law or to
compel the State to amend its Budget laws. Even assuming that the
applicant had applied for enforcement proceedings at an earlier
stage, the execution of the judgment against the debtor company would
have been substantially impeded due
to the above Law (see Kozachek v. Ukraine,
no. 29508/04, §§ 20-25, 7 December 2006).
Moreover, a period of about one year and a half elapsed between the
request for and the issuing of the writ of execution, whilst the case
was pending before the Supreme Court.
- Therefore,
the Court finds that, in the particular circumstances of this case,
irrespective of the fact that no formal enforcement proceedings were
pending during the period of 25 December 2003 to 27 July 2006,
such a state of affairs engaged the responsibility of the State for
enforcement of the judgment throughout the period of 25 December 2003
to 12 September 2006.
- The
Court further observes that the delay in the enforcement of the
judgment of 3 November 2003, as amended by the Kharkiv Regional Court
of Appeal on 25 December 2003, constituted about two years and ten
months.
- The Court notes that it has already found violations
of Article 6 § 1 of the Convention in a number of
similar cases (see, for instance, Dubenko v. Ukraine,
no. 74221/01, §§ 47 and 51, 11 January
2005).
- Having
examined all the materials 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 in respect of the lengthy non-enforcement of the
judgment in the applicant's favour.
- Having
regard to the above findings under Article 6 § 1, the Court
considers that it is not necessary to rule whether, in this case,
there has been a violation of Articles 13 and 17 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 50,000 US dollars
in respect of non pecuniary damage.
- The
Government contested that claim.
- The
Court, making its assessment on an equitable basis, as required by
Article 41, awards the applicant EUR 800 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed UAH 121.50
for the costs and expenses incurred before the domestic courts and
UAH 145.48
for correspondence costs in the proceedings before the Court.
- The
Government contested the claim for the expenses before the domestic
courts and left for the consideration of the Court the claim for the
expenses incurred before it.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 21 for the
proceedings before the Court.
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 is no need to examine the
complaint under Article 13 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 821 (eight
hundred and twenty one euros), plus any tax that may be
chargeable, in respect of non pecuniary damage and expenses, to
be converted into the national currency 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 27 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
