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FIFTH
SECTION
CASE OF LUKYANOV v. UKRAINE
(Application
no. 11921/04)
JUDGMENT
STRASBOURG
19 June 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 Lukyanov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Volodymyr Butkevych,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11921/04) 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 Leonid Nikitovich Lukyanov (“the applicant”),
on 12 March 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
5 April 2006 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 1935 and lives in Yalta.
5. In
November 2000 the applicant instituted civil proceedings in the
Yalta Court (Ялтинський
міський суд)
seeking to oblige the Yalta Council’s Executive Committee
(Виконавчий
комітет Ялтинської
міської ради)
to provide his family of five residing in a one-bedroom
apartment with larger housing. In his statement of claim the
applicant noted, in particular, that he had been placed on the
special waiting list for disabled war veterans, which entitled him to
obtain suitable housing within two years of the placement.
- On
4 May 2001 the court ordered the Executive Committee to
provide the applicant’s family with an apartment meeting the
standards established by Articles 48
and 50 of the Housing Code of Ukraine (Житловий
кодекс України).
By way of reasoning, the court dismissed the defendant’s
allegations that no municipal housing was available at the time. The
court observed in this regard that the applicant’s statutory
right to obtain housing within two years of the date of the placement
on the waiting list was unconditional.
- On
19 September 2002 the Supreme Court of Ukraine upheld this
judgment following cassation review and it became final.
- On
17 December 2002 the Yalta Bailiffs (Відділ
Державної
виконавчої
служби
Ялтинського
управління
юстиції)
initiated enforcement proceedings, having given the Executive
Committee the time-limit of 17 January 2003 to comply with
the judgment.
- In
summer 2003 the enforcement proceedings were terminated on
account that vacant municipal housing was lacking.
- On
23 March 2006 the Executive Committee decided to allocate a
newly-constructed two-bedroom apartment and a one-bedroom apartment
formerly belonging to a hostel to the applicant’s family.
- According
to the applicant, the two-bedroom apartment at issue lacked necessary
facilities, such as sanitary equipment and electric outlets. The
apartment, which formerly belonged to a hostel, was unsuitable for
establishing a permanent residence.
- According
to the Government, the apartments at issue complied with applicable
housing norms, which had been certified by competent commissions. On
27 October 2006 the applicant registered his residence in
the new two-bedroom apartment.
II. RELEVANT DOMESTIC LAW
- A description of the domestic law concerning the
enforcement of judgments can be found in Skubenko v.
Ukraine, (dec.), no. 41152/98, 6 April 2004.
- According
to Section 13 paragraph 18 of the Law of Ukraine “On the
Status of War Veterans, Guarantees of Their Social Protection”
(Закон України
«Про статус
ветеранів
війни, гарантії
їх соціального
захисту»)
of 22 October 1993 (as amended) disabled war
veterans are eligible to obtain municipal housing within two years of
having been placed on the waiting list.
- Article 48 of the Housing Code of Ukraine (Житловий
кодекс України)
of 30 June 1983 (as amended) stipulates, in particular,
that the minimal size of residential premises should comply with
applicable standards developed by the Cabinet of Ministers and the
Trade Union Federation. According to Article 50 of the Code,
residential premises should comply with sanitary and technical norms.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND
13 OF THE CONVENTION
A. Admissibility
- The
applicant complained about the lengthy non-enforcement of the court
judgment of 4 May 2001 given in his favour. He invoked
Article 13 of the Convention. The Court finds that the above
complaint falls to be examined also under Article 6 § 1
of the Convention. These provisions read 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 submitted that the judgment given in the applicant’s
favour had been executed in full. He could therefore no longer claim
to be a victim of the non-enforcement.
- The
applicant disagreed. He maintained that the two apartments allocated
to his family were uninhabitable and did not meet the standards
prescribed by Articles 48 and 50 of the Housing Code, to which
the Yalta Court referred in its judgment of 4 May 2001. He
submitted, therefore, that the judgment at issue had remained
unenforced.
- The
Court notes that the applicant did not present any materials to
support his allegations concerning the non-compliance of the
apartments at issue with applicable housing provisions. Furthermore,
according to the case-file materials, he did not raise any relevant
complaints before the domestic authorities. In these circumstances,
the Court does not have reasons to doubt the Government’s
submissions and considers that the judgment of 4 May 2001
has been enforced (see e.g. Gavrilenko v. Ukraine,
no. 24596/02, § 18, 20 September 2005).
- However,
the fact that the judgment in the applicant’s favour has been
enforced does not deprive him of a victim status in relation to the
period during which this judgment remained unenforced (see e.g.
Skubenko, cited above). Accordingly, the Court rejects the
Government’s preliminary objection.
- The Court notes 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
- In
its observations on the merits, the Government submitted that the
judgment given in the applicant’s favour had been executed in
full. There was, therefore, no breach of his Convention rights.
- The
applicant disagreed.
- The
Court recalls that the aforesaid judgment, which became final on
19 September 2002, remained unenforced for more than three
and a half years. It finds that the Government have not advanced any
convincing justification for this delay.
- The
Court, having regard to its extensive case-law on the matter of
non-enforcement (see, e.g. Skubenko v. Ukraine, no. 41152/98,
§§ 37-38, 29 November 2005) finds a violation of
Article 6 § 1 of the Convention in respect of the
unreasonable length of the enforcement of judgment in the applicant’s
case.
- The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 17 OF THE CONVENTION
- The
applicant further complained about a violation of Article 17 of
the Convention on account of the non-enforcement of the judgment in
his favour.
- The
Court finds that this part of the application is wholly
unsubstantiated and must therefore be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 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 the global sum of 600,000 euros (EUR) in respect of
just satisfaction.
- The
Government did not comment on this claim.
- The
Court finds that the applicant must have suffered non-pecuniary
damage on account of the lengthy non-enforcement of the judgment
given in his favour. Ruling on an equitable basis, it awards the
applicant EUR 1,300 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.
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 complaints under Article 6 § 1
and 13 of the Convention 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 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 1,300
(one thousand three hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, 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 19 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
