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FIFTH
SECTION
CASE OF FYODOROV v. UKRAINE
(Application
no. 23906/05)
JUDGMENT
STRASBOURG
22 July 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 Fyodorov 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 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23906/05) 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 Kronid Ivanovich
Fyodorov (“the applicant”), on 18 June 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
7 September 2005 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 1930 and resides in the
town of Zhovti Vody, Dnipropetrovsk
region, Ukraine.
- On
an unspecified date the applicant instituted three separate sets of
proceedings in the Zhovti Vody Town Court of Dnipropetrovsk Region
against his employer, a State-owned company, the Zhovti Vody
Construction Department (Жовтоводське
управління
будівництва),
for salary arrears and other payments.
- On
13 December 2000 and 31 July 2001 the court found for the applicant
and awarded him a total of 4,694.11
Ukrainian hryvnyas (UAH). On 12 March
2002 the court dismissed the applicant's third claim as time-barred.
- In 2001 the Zhovti Vody Town Bailiffs' Service
initiated enforcement proceedings.
- The
applicant received UAH 2,142, but the remainder of the
awards remains unpaid.
- On 5 October 2004 the Ministry of
Fuel and Energy liquidated the debtor enterprise and the writs of
enforcement were transferred to the liquidation commission.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. SCOPE OF THE CASE
- The
Court observes that after communication of the application to the
respondent Government and in response to the Government's
observations as to the merits of the application, the applicant
submitted afurther complaint under Article 13 of the Convention,
alleging that he had no remedies against the lengthy non-enforcement
of the judgments of 13 December 2000 and 31 July 2001.
- In the Court's view, the new complaint does not
constitute an elaboration of the applicant's original complaint to
the Court, which is limited to the alleged lengthy non-enforcement of
the judgments in question. The Court considers, therefore, that it is
not appropriate now to take these matters up separately in the
context of the present application (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. THE LENGTHY NON-ENFORCEMENT OF THE JUDGMENTS IN THE
APPLICANT'S FAVOUR
- In
his initial submission the applicant complained under Article 17
of the Convention and Article 1 of Protocol No. 1 about the lengthy
non-enforcement of the judgments of 13 December 2000 and 31 July
2001 and that he could not recover the debts due to him from the
State-owned company in accordance with the judgments at issue.
Subsequently he also referred to Article 6 § 1 of the
Convention.
- The
Court will examine the applicant's complaint about the lengthy
non-enforcement of the judgments in question under 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
parties did not submit any observations in respect of the
admissibility of this complaint.
- The
Court notes that the applicant's complaint about the lengthy
non-enforcement of the judgments in question is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- In
their observations on the merits of the case, the Government
contended that there had been no violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1.
- The
Court notes that the judgments given in the applicant's favour have
remained unenforced for seven years and six months and six years and
eleven months, respectively.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases like the present application (see, among other authorities,
Voytenko v. Ukraine, no. 18966/02, §§ 39-43
and 53-55, 29 June 2004 and Dubenko v. Ukraine,
no. 74221/01, §§ 44-47 and 50-51,
11 January 2005). The Court finds no ground to depart from
its case-law 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
judgments in the applicant's favour and a violation of Article 1
of Protocol No. 1 in the present application.
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 unsettled judgment debts in respect of
pecuniary damage. He also claimed EUR 1,000 in respect of
non-pecuniary damage.
- The
Government submitted that they did not question the necessity to
enforce the judgments in the applicant's favour. However, they found
the claim in respect of non-pecuniary damage exorbitant and
unsubstantiated.
- The
Court notes that, as the judgments given in favour of the applicant
remain unenforced, the Government should pay the applicant the
outstanding debts. The Court further takes the view that the
applicant must have sustained non-pecuniary damage as a result of the
violations found. The Court, accordingly, awards the applicant the
amount claimed.
B. Costs and expenses
- The
applicant also claimed UAH 31.85
for the costs and expenses incurred in the proceedings before the
Court.
- The
Government did not object.
- The
Court considers it reasonable to award the applicant EUR 5 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 complaint under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 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;
- 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
outstanding debt in accordance with the judgments of 13 December
2000 and 31 July 2001;
(ii) EUR 1,000
(one thousand euros) in respect of non-pecuniary damage and EUR 5
(five euros) for the costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable to the
applicant;
(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.
Done in English, and notified in writing on 22 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
