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FIFTH
SECTION
CASE OF CHECHIN v. UKRAINE
(Application
no. 6323/03)
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 Chechin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Volodymyr
Butkevych,
Rait
Maruste,
Mark
Villiger,
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. 6323/03) 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 Sergey Sergeyevich Chechin (“the applicant”),
on 7 February 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs V. Lutkovska succeeded by
Mr Y. Zaytsev.
- On
26 May 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 1948 and lives in Tavriysk.
- On
20 December 2001, 27 March 2003 and 30 March 2004
the Nova Kakhovka Court (Новокаховський
міський суд
Херсонської
області)
ordered the OJSC “Pivdenelekromash” (“the
Company,” ВАТ
“Південелектромаш”),
75% of whose shares were owned by the State, to pay the applicant the
total of 18,250.55 hryvnyas (UAH) in salary arrears and other
payments.
- These
judgments were not appealed against and became final. Enforcement
proceedings were instituted in respect of the judgments of
20 December 2001 and 27 March 2003. On different
occasions the bailiffs informed the applicant that the collection of
the debts was impeded by pending bankruptcy proceedings against the
Company.
- The
judgment awards due to the applicant have not been fully paid.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004)
and Trykhlib v. Ukraine (no. 58312/00, §§
25-32, 20 September 2005).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF
THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about the State authorities’ failure to
enforce the judgments given in his favour in due time. He invoked
Article 6 § 1 of the Convention and Article 1
of Protocol No. 1, which 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 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 submitted that the applicant had not exhausted domestic
remedies in respect of his complaints, as he never requested to be
registered as a Company creditor in bankruptcy proceedings. They
further submitted that the State was not responsible for the
enforcement of the judgment of 30 March 2004, as the
applicant never sought institution of the enforcement proceedings in
respect of this judgment.
- The
applicant disagreed.
- The Court recalls that it has already dismissed
similar objections in other cases concerning the non-enforcement of
judgments against the State-controlled companies (see, e.g., Trykhlib
v. Ukraine, cited above, §§ 38-43 and
Kozachek v. Ukraine, no. 29508/04, §§ 19-25,
7 December 2006). The Court considers that these objections
must be rejected for the same reasons.
- The
Court finds that the above complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- The
Court observes that the judgments given in the applicant’s
favour remain unenforced for the periods ranging from over four to
six years.
- 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
number of similar cases, including in cases concerning the same
State-controlled debtor - the OJSC “Pivdenelektromash”
(see, for instance, Trykhlib v. Ukraine, cited above,
§§ 52-53; Chernyayev v. Ukraine, no. 15366/03,
§§ 19-20 and 25-26, 26 July 2005 and
Anatskiy v. Ukraine, no. 10558/03, §§ 21-23,
13 December 2005).
- 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 of Article 1 of Protocol No. 1.
II. 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 the unsettled judgments debts and 12,000 euros
(EUR) in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court finds that the Government should pay the applicant the
outstanding judgments debts still owed to him. The Court also
considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 2,600 in
this respect.
B. Costs and expenses
- The
applicant submitted that he sustained costs and expenses in
connection with the present application, but failed to specify any
amount.
- The
Government did not comment on this claim.
- 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.
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 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,
(i) the
unsettled judgments debts still owed to him and
(ii) EUR 2,600
(two thousand six hundred euros), plus any tax that may be
chargeable, 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;
(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 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
