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FIFTH
SECTION
CASE OF BELOCHENKO v. UKRAINE
(Application
no. 41803/04)
JUDGMENT
STRASBOURG
15
May 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 Belochenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Rait
Maruste,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41803/04) 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 Ivan Pavlovich Belochenko on 16 November 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska, succeeded by Mr Y. Zaytsev.
- On
21 January 2005 the Court decided to give notice of 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 1952 and lives in Sevastopil.
- On
30 July 1999 the Sevastopil Military Court (Військовий
суд Севастопільського
гарнізону)
ordered the Military Unit A-3009 (Військова
частина А-3009)
to pay the applicant, a retired officer, 1,599.42 hryvnyas
(UAH) in compensation for his uniform. This judgment was not appealed
against, became final and the enforcement proceedings were instituted
to collect the judgment debt.
- On numerous occasions the bailiffs informed the
applicant that they were unable to enforce the judgment
on account of the lack of budgetary allocations.
- On
17 May 2005 the judgment debt was paid to the applicant.
- On
an unspecified date the applicant instituted civil proceedings in the
Nakhimovsky District Court of Sevastopil (Нахімовський
районний суд
м. Севастополя)
seeking indexation of the award, which was due to him under
the judgment of 30 July 1999, default interest and
non-pecuniary damage on account of the delay in payment.
- On
10 October 2006 the court awarded the applicant
UAH 1,375.50 in indexation of the judgment award and dismissed
the remainder of his claims. This judgment was not appealed against,
became final, and enforcement proceedings were instituted to collect
the judgment debt. As of August 2007 this judgment remained
unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment in the case of
Voytenko v. Ukraine (no. 18966/02, §§ 20-25,
29 June 2004).
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that on 3 October 2005, after the case had been
communicated to the respondent Government, the applicant additionally
invoked Article 1 of Protocol No. 1 concerning the
facts of the present case. On 23 August 2007 he further
complained about the non-enforcement of the judgment of
10 October 2006.
- In
the Court’s view, the new complaints are not an elaboration of
the applicant’s original complaints to the Court, which had
been communicated to the respondent Government. The Court considers,
therefore, that it is not appropriate now to consider them (see
Piryanik v. Ukraine, no. 75788/01, § 20,
19 April 2005).
II. ADMISSIBILITY
- The
applicant complained under Article 6 § 1 about
the State authorities’ failure to enforce the judgment of
30 July 1999 given in his favour in due time. He further
complained under Article 13 of the Convention that he had no
effective remedies for his complaint under Article 6 § 1.
The impugned provisions 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 raised objections regarding exhaustion
of domestic remedies similar to those which the Court has already
dismissed in a number of similar cases concerning the non-enforcement
of the court judgments (see Sokur v. Ukraine (dec.), no.
29439/02, 16 December 2003 and Voytenko v. Ukraine, cited
above, §§ 27-31). The Court considers that these
objections must be rejected for the same reasons.
- The
Court finds that these complaints are not manifestly ill-founded
within the meaning of Article 35 §§ 1, 3 and 4 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
III. MERITS
A. The applicant’s complaint under Article 6 §
1 of the Convention
- The
Government contended that the bailiffs had taken every action
necessary to enforce the judgment in the applicant’s favour and
that there had been no violation of Article 6 § 1.
- The
applicant disagreed.
- The
Court notes that the period of debt recovery in the applicant’s
case was five years and nine months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Voytenko v. Ukraine, cited above, § 43).
- 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.
B. The applicant’s complaint under Article 13 of
the Convention
- The
Government contended that the applicant had had effective channels of
complaint, in particular, he could have challenged omissions of the
bailiffs in the course of the enforcement proceedings.
- The
applicant disagreed.
- The
Court recalls that it had already found ineffective the remedy,
referred to by the Government, in other similar cases (see e.g.,
Voytenko v. Ukraine, cited above, §§ 46-48).
It finds no reason to depart from its case-law in the present case.
- Accordingly,
there has been a breach 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 2,500 in respect of pecuniary damage
and UAH 15,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 600 for costs and expenses incurred
by him in the course of domestic enforcement proceedings and before
the Court. He presented receipts for UAH 260 in postal, copying
and translation expenses.
- The
Government noted that the applicant failed to substantiate the full
amount claimed.
- 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
considers it reasonable to award the sum of EUR 50 covering
costs under all heads.
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 has been a violation of
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 2,000
(two thousand euros) and EUR 50 (fifty euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant on these amounts, 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 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
