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FIFTH
SECTION
CASE OF FEDORTSI v. UKRAINE
(Application
no. 10616/02)
JUDGMENT
STRASBOURG
31
January 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 Fedortsi v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Javier
Borrego Borrego,
Renate
Jaeger,
Mark
Villiger,
judges,
and Claudia Westerdiek, Section
Registrar,
Having deliberated in private on 8
January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10616/02) 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 Mikhail Stepanovich
Fedortsi (“the applicant”), on 12 February 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeriya Lutkovska.
- On
7 September 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 1933. He died on 2 July 2005. In a letter of 10
March 2006 the applicant's son, Mr Yuriy Mikhaylovych Fedortsi,
informed the Court that he wished to pursue the application.
A. Court proceedings concerning disability allowance
arrears
- In
December 1999 the applicant brought proceedings against the
Moskovska State Mine (ДП “Шахта
Московська”,
hereafter “the Mine”) seeking recovery of
occupational disability allowance arrears.
- On
22 February 2000 the Shakhtarsk Town Court (Шахтарський
міський суд,
hereafter “the Shakhtarsk Court”) found in part for the
applicant and awarded him 2,108.64 Ukrainian Hryvnas
(UAH) in compensation for allowance arrears. Considering this sum
insufficient, the applicant appealed.
- On
20 March 2000 the Donetsk Regional Court (Донецький
обласний суд)
partially quashed this judgment and remitted the case for a fresh
consideration.
- On
24 May 2000 the Shakhtarsk Court allowed the applicant's claim in
part and awarded him UAH 3,616.63
in compensation for allowance arrears. The applicant again appealed.
- On
11 September 2000 the Donetsk Regional Court quashed the judgment of
24 May 2000 and remitted the case for a fresh
consideration.
- On
21 November 2000 the Shakhtarsk Court raised the applicant's award up
to UAH 3,980.16.
This judgment was not appealed against.
- In
2001 the applicant lodged with the Supreme Court (Верховний
Суд України)
a request for leave to appeal against the judgment of 21 November
2000 under the new cassation procedure. On 18 September 2001
the panel of three judges of the Supreme Court rejected his request.
B. Enforcement proceedings
- On
14 December 2002 the Shakhtarsk Town Bailiffs' Service (Відділ
держаної виконавчої
служби Шахтарського
міського управління
юстиції,
hereafter “the Shakhtarsk Bailiffs' Service”) instituted
enforcement proceedings in respect of the Shakhtarsk Court's judgment
of 21 November 2000.
- On
24 July 2001 the Ministry of Fuel and Energy (Міністерство
палива і енергетики)
decided to wind up the Mine.
- On
28 August 2001 the Shakhtarsk Bailiffs' Service remitted the
applicant's writ of execution and enforcement case-file to the Mine's
liquidation commission.
- On
3 December 2002 the applicant was paid the court award in full. On
the same date the enforcement proceedings were terminated.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law is summarised in the
judgment of Romashov v. Ukraine (no. 67534/01, §§
16-18, 27 July 2004).
THE LAW
I. PRELIMINARY OBSERVATION
- The applicant died on 2 July 2005, while the case was
pending before the Court (see paragraph 5 above). It has not been
disputed that his son is entitled to pursue the application on his
behalf and the Court sees no reason to hold otherwise (see, mutatis
mutandis, Kalló v. Hungary, no. 30081/02,
§ 25, 11 April 2006 and Sildedzis v. Poland,
no. 45214/99, § 30, 24 May 2005).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about the non-enforcement
of the Shakhtarsk Court's judgment of 24 May 2000 in his favour and
invoked Article 6 § 1 of the Convention and Article 1
of Protocol No. 1, which in so far as relevant, 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 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 argued that the applicant lost his
victim status after the execution of the court judgment in his
favour. They also claimed that the applicant had failed to claim
compensation for material damage incurred as the result of continued
non-execution of the judgment and thus had failed to exhaust domestic
remedies available to him.
- The Court notes that these objections are similar to
those which the Court has already dismissed in a number of judgments
(see, for example, Voytenko v. Ukraine, no. 18966/02, §§
27-35, 29 June 2004 and Romashov v. Ukraine, no.
67534/01, §§ 26-27, 27 July 2004). The Court considers that
the present objections must be rejected for the same reasons.
- The Court notes that these 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.
B. Merits
- In
their observations, the Government contended that there had been no
violation of Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1 (as in the cases of Romashov, cited
above, § 37, and Voytenko, cited above § 37).
- The
applicant disagreed.
- The
Court notes that the judgment of the Shakhtarsk Court of 21 November
2000 remained unenforced for two 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 cases raising issues similar to the present application (see, for
example Sokur v. Ukraine, no. 29439/02,
§§ 34-37, 26 April 2005, and Romashov, cited
above, §§ 42 46).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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 Article 1 of
Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 § 1 of
the Convention about the outcome of the proceedings before the
domestic courts, stating that the amount of the award was
insufficient.
28. The
Court notes that the final decision, within the meaning of
Article 35 § 1 of the Convention, in the applicant's case was
given by the Shakhtarsk Court on 21 November 2000 and thus
more than six months before the date on which the application was
submitted to the Court. The applicant's appeal to the Supreme Court
of Ukraine against the above decision under the new cassation
procedure cannot be taken into account, since this procedure is not a
remedy within the meaning of Article 35 § 1 of the Convention in
respect of the cases finally decided before 29 June 2001
(see Prystavska v. Ukraine (dec.), no.21287/02, 17
December 2002). Therefore this part of the application has been
submitted too late and must be rejected in accordance with Article 35
§§ 1 and 4 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 100,000 (approximately EUR 13,500) in respect
of non-pecuniary damage.
- The
Government considered that the applicant did not suffer any damage
and that, in any case, his demands were excessive.
- Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court considers it reasonable to award the
applicant a global sum of EUR 500 in respect of non-pecuniary
damage to be held by Mr Yuriy Mikhaylovych Fedortsi on behalf of the
beneficiaries of the applicant's estate.
B. Costs and expenses
- The
applicant did not submit any claim under this head within the set
time-limit; 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 complaint under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 concerning the
non-enforcement of a court judgment in the applicant's favour
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
the respondent State is to pay the applicant's son, Mr Yuriy
Mikhaylovych Fedortsi to be held on behalf of the beneficiaries of
the applicant's estate, within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 500 (five hundred euros) 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, plus any tax that may be chargeable;
(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 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
