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FIFTH
SECTION
CASE OF
PASLEN v. UKRAINE
(Application
no. 44327/05)
JUDGMENT
STRASBOURG
11
December 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 Paslen v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 44327/05) 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 Vladimir Vladimirovich
Paslen (“the applicant”), on 23 November 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
7 September 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 was born in 1956 and lives in Donetsk. He retired from the
army in 2003.
A. First set of proceedings
- By
the final judgment of 19 August 2004, the Military Court of Donetsk
Garrison ordered the Donetsk Regional Enlistment Office to pay the
applicant 1,144.07 Ukrainian hryvnias (UAH)
in compensation for his uniform and UAH 51
for court fees. The judgment remains unenforced.
B. Second set of proceedings
- By
the decisions of 8 April and 16 June 2005, the Voroshylivskyy
District Court of Donetsk and the Donetsk Regional Court of Appeal
rejected the applicant’s new claim for compensation for his
uniform as unsubstantiated.
- The
applicant did not appeal in cassation.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Voytenko v.
Ukraine (no. 18966/02, §§ 20-25, 29 June 2004).
THE LAW
I. NON-ENFORCEMENT OF THE JUDGMENT IN THE APPLICANT’S
FAVOUR
- The
applicant complained of the lengthy non-enforcement of the judgment
of 19 August 2004. He invoked Articles 6 § 1 and
13 of the Convention and Article 1 of Protocol No. 1,
which provide, in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair
... hearing within a 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.”
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 ...”
- The Government raised objections regarding the
applicability of Article 6 § 1 and exhaustion of
domestic remedies similar to those which the Court has already
dismissed in a number of judgments (see, for example, Mitin v.
Ukraine, no. 38724/02, §§ 20-24, 14 February
2008, and Voytenko v. Ukraine, cited above, §§
27-31).
- The
Court notes that the final judgment of the Military Court of Donetsk
Garrison of 19 August 2004 has remained unenforced for about four
years and one month.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in a substantial number of cases raising issues similar to the
present application (see, for example, Voytenko v. Ukraine,
cited above, §§ 43 and 55). There is nothing in the
parties’ submissions capable of persuading the Court to reach a
different conclusion.
- Accordingly,
the Court declares this part of the application admissible and finds
that there has been a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1.
- The
Court does not find it necessary in the circumstances to examine the
same complaint under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
II. COMPLAINTS
REGARDING THE SECOND SET OF PROCEEDINGS
- The
applicant complained of a violation of Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
on account of the outcome and unfairness of the second set of
proceedings.
- The
Court notes that the applicant did not appeal in cassation to the
Supreme Court and has, therefore, not exhausted all the remedies
available to him under Ukrainian law (see Vorobyeva
v. Ukraine
(dec.), no. 27517/02,
17 December 2002). It follows that this part of the application
must be declared inadmissible pursuant to Article 35 §§ 1
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 UAH 3,272.46,
to be indexed to take inflation into account, for pecuniary
damage, and UAH 250,000
for non pecuniary damage. The Government disagreed. The Court
makes its assessment on an equitable basis as required by Article 41
of the Convention and considers that the Government should pay the
applicant the outstanding debt (UAH 1,195.07)
in settlement of his pecuniary damage. It also awards him EUR 600
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award in this respect.
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
concerning the non-enforcement of the judgment of 19 August 2004
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 to the Convention;
- Holds that there is no need to examine
separately the applicant’s 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, the judgment
debt still owed to him (UAH 1,195.07), as well as EUR 600
(six hundred euros), plus any tax that may be chargeable, in respect
of pecuniary and non-pecuniary damage, the latter amount 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 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 11 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
