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FIFTH
SECTION
CASE OF YANGOLENKO v. UKRAINE
(Application
no. 14077/05)
JUDGMENT
STRASBOURG
10
December 2009
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 Yangolenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
judges,
Mykhaylo Buromenskiy, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar.
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14077/05) 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 Yevgeniy Alekseyevich
Yangolenko (“the applicant”), on 6 April 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev, of the Ministry of Justice.
- On
19 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in the town of Torez, Ukraine.
First set of proceedings
- On
5 November 1998 the applicant instituted proceedings in the Torez
Town Court against the Torezantratsyt State Company, his former
employer, seeking recalculation of his monthly payments for
work-related damage and compensation for non-pecuniary damage. On 13
July 2000 the court found in part for the applicant and awarded him a
lump sum of 948.27 Ukrainian hryvnias (UAH),
and UAH 50.48 to be paid monthly. The defendant appealed and on
14 August 2000 the Donetsk Regional Court (from June 2001 the
Donetsk Regional Court of Appeal) quashed that judgment and remitted
the case to the lower court for a fresh examination.
- At
this stage of proceedings the Ukrvuglerestrukturyzatsiya State
Company (ДК
«Укрвуглереструктуризація»)
(“Company no. 1”) was joined as co-defendant.
- On
5 February 2003 the Torez Town Court found in part for the
applicant and ordered the Company no. 1
to pay the applicant the lump sum of UAH 4,574.33 and UAH 122.90
in monthly life-time instalments. According to
the applicant, that judgment was not appealed against and became
final.
- In
that regard, on an unspecified date the State Bailiffs’ Service
instituted proceedings to enforce the judgment.
- In
the course of those proceedings the applicant requested the Torez
Town Court to replace the debtor with another company, the
Donvuglerestrukturyzatsiya State Company
(ДП «Донвуглереструктуризація»)
(“Company no. 2”). On 2 June 2004 the court turned down
that request.
- On
11 October 2004 the Ministry of Fuel and Energy started the process
of liquidation of Company no. 1.
- On
27 September 2006 by a decision of the Ministry of Coal Industry
Company no. 1 was merged with Company no. 2.
- On
29 December 2007 Company no. 2 was reorganised in its turn and merged
with the Ukrvugletorfrestrukturyzatsiya State Company (ДП
«Укрвуглеторфреструктуризація»)
(“Company no. 3”).
- On
9 April 2009 the Bailiffs’ Service requested the Torez Town
Court to replace the debtor in the case. On the same day the
enforcement proceedings were stayed pending the court’s
decision.
- On
23 June 2009 the court rejected the Bailiffs’ Service’s
request.
- The
judgment of 5 February 2003 remains unenforced.
Second set of proceedings
- In
January 2001 the applicant instituted proceedings in the Torez Town
Court against the local State Social Security Department, seeking
compensation for the allegedly incorrect calculation of his pension.
On 27 February 2001 the court found against the applicant. On 23
April 2001 the Donetsk Regional Court upheld
that judgment.
Third set of proceedings
- In
April 2002 the applicant instituted proceedings in the
Donetsk Regional Court of Appeal against the Torez Town Court,
seeking compensation for the lengthy
examination of his claim against the Torezantratsyt State
Company. On 11 April 2002 the court found that domestic legislation
did not confer on the applicant a right to lodge claims against lower
courts if he was not satisfied with their administration of justice.
On 25 November 2002 the same court dismissed appeals by the applicant
against that decision for procedural shortcomings. The applicant did
not appeal against the latter decision.
Fourth set of proceedings
- In
October 2003 the applicant instituted proceedings in the Torez Town
Court against Company no. 2, seeking salary arrears and compensation
for non-pecuniary damage. On 23 July 2004 the court dismissed his
claim as statute-barred. On 7 October 2004 and 25 July 2007
respectively the Donetsk Regional Court of
Appeal and the Kyiv City Court of Appeal, sitting as a court of
cassation, upheld that judgment.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the length of the first set of proceedings
and about the lengthy non-enforcement of the judgment of 5 February
2003 under Article 6 § 1 of the Convention, which reads 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. ...”
A. Admissibility
- The Government submitted that
the applicant had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. In particular,
they maintained that the applicant had failed to apply to any
domestic court to challenge the allegedly inadequate enforcement by
the Bailiffs’ Service of the judgment in his favour.
- The
applicant disagreed.
- The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (see Voytenko v.
Ukraine, no. 18966/02, § 29-31, 29 June 2004).
The Court considers that the objections in the instant case must be
rejected for the same reasons.
- The
Court notes that the 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
applicant reiterated his complaints.
- The
Government submitted that the applicant’s case was quite
complicated, as there had been several forensic expert evaluations
ordered by the court and the court had needed time to assess
different evidence in the case. Moreover, the parties contributed to
the length of proceedings as they lodged numerous requests, appeals
and other complaints, and the representative of defendant failed
three times to appear in the court hearings which were subsequently
postponed. The Government further stated that the courts and the
Bailiffs’ Service had acted diligently in the present case.
- The
Court reiterates that the court proceedings and the enforcement
proceedings are stages one and two in the total course of proceedings
(see Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 197). Therefore, the enforcement proceedings should not
be dissociated from the action and the proceedings are to be examined
in their entirety (see Estima Jorge v. Portugal, 21 April
1998, § 35, Reports of Judgments and Decisions 1998 II,
and Sika v. Slovakia,
no. 2132/02, §§ 24-27, 13 June 2006).
- The
Court considers that in the present case the court proceedings lasted
for four years and three months, which included three court decisions
on two levels of jurisdiction. Although such length of the court
proceedings can appear to be marginal, the decision adopted following
these proceedings remains unenforced for six years and eight months.
- The
Court reiterates that it has already found violations of
Article 6 § 1 of the Convention in similar cases
(see, among other authorities, Sokur v. Ukraine, no. 29439/02,
§§ 30-37, 26 April 2005; Stadnyuk v. Ukraine,
no. 30922/05, §§ 21-25, 27 November 2008).
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Without
specifying the set of proceedings concerned, the applicant complained
under Article 6 § 1 and Article 13 of the Convention about their
outcome. He further complained under Article 6 § 1 of the
Convention about the length of all other proceedings in his case. The
applicant also invoked Article 17 of the Convention.
- Having
carefully considered the applicant’s submissions in the light
of all the material in its possession, the Court finds that, in so
far as the matters complained of are within its competence, they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
- It
follows that this part of the application must be declared
inadmissible 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 250,872 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the claim for pecuniary damage consisted of
different amounts which had not been received by the applicant on the
national level and was completely unrelated to the subject matter of
the proceedings before this Court. The Government further stated that
the applicant’s claim for the non-pecuniary damage was
unsubstantiated.
- 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.
- The
Court also notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment at issue.
B. Costs and expenses
- The
applicant also claimed UAH 127,000
for the costs and expenses incurred before the domestic courts and
the Court.
- The
Government noted that the applicant was not represented and had
failed to submit any documents in support of the expenses incurred.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses as the applicant has failed
to substantiate his 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 complaint under Article 6 § 1
of the Convention concerning the length of the first set of the court
proceedings and the enforcement proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 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,
(i) the
outstanding debt under the judgment given in the applicant’s
favour;
(ii)
EUR 2,000 (two thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, to be converted into Ukrainian
hryvnias 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 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
