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FIFTH
SECTION
CASE OF SARAFANOV AND OTHERS v. UKRAINE
(Application
no. 32166/04)
JUDGMENT
STRASBOURG
14
December 2006
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 Sarafanov and Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32166/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by six Ukrainian nationals: Mr Nikolay Ivanovich
Sarafanov, Mr Nikolay Markovich Kolbasa, Mr Nikolay Aleksandrovich
Kuzminskiy, Mr Pavel Ivanovich Lysenko, Mr Yevgeniy Mikhaylovich
Seredin and Mr Pyotr Mikhaylovich Solonkin (“the applicants”)
on 25 August 2004.
- The
applicants were represented by Mr V. Bychkovskiy from Miusinsk.
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- On
2 November 2005 the Court decided to communicate the
complaints under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 concerning the non-enforcement of the
judgments in the applicants' favour 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
applicants live in Miusinsk, the Lugansk region. The first, the
third, the fourth, the fifth and the sixth applicants were born in
1943, 1936, 1940, 1950 and 1934 respectively. The second applicant
did not specify the date of his birth.
- On
29 November 2000 the Krasnyy Luch Court (Краснолуцький
міський суд
Луганської
області) awarded
the first applicant UAH 286.68
against the State Mining Company Novopavlivska (“the Mine,”
ДВАТ шахта
„Новопавлівська”)
in compensation for a delayed salary payment.
- Additionally,
between 2001 and 2004 (see annexed table) each of the applicants
obtained a judgment of the Krasnyy Luch Court ordering the Mine to
provide him with a certain quantity of coal.
- All
of the judgments given in favour of the applicants became final and
the enforcement writs in their respect were transferred to the
Krasnyy Luch Bailiffs'
Service (“the Bailiffs,”
Відділ
державної
виконавчої
служби Краснолуцького
міського управління
юстиції) for
enforcement.
- On
8 February 2005 the Bailiffs informed the applicants that
pursuant to a decision of the Lugansk Regional Commercial Court
(Господарський
суд Луганської
області)
of 14 November 2002, the Mine had been declared bankrupt and
subjected to a financial rehabilitation procedure that was to
continue until 31 December 2007. The Bailiffs further noted that the
Mine was not mining any coal, due to the lack of financing from the
State.
- The
judgment of 29 November 2000 awarding compensation to the first
applicant was enforced on 12 December 2005. The other judgments
awarding the applicants coal have not been enforced.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
- The
applicants complained about the State authorities' failure to enforce
the judgments of the Krasnyy Luch Court given in their favour in due
time. They invoked Article 6 § 1 of the Convention and Article 1
of Protocol No. 1. The third applicant additionally invoked
Article 13 of the Convention on the same grounds as Article 6 §
1. These provisions, insofar as relevant, provide 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.”
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 .”
I. ADMISSIBILITY
- The
Government submitted no observations on the admissibility of the
applicants' complaints.
- The
Court concludes that the application raises issues of fact and law
under the Convention, the determination of which requires an
examination on the merits. The Court finds no ground for declaring it
inadmissible. The Court must therefore declare it admissible.
II. MERITS
- In
their observations on the merits of the applicants' claims, the
Government contended that there had been no violation of Article 6 §
1 of the Convention or Article 1 of Protocol No. 1.
- The
applicants disagreed.
- The
Court observes that the delay in enforcement of the judgment of
29 November 2000 in favour of the first applicant was five
years and two weeks. It further notes that the other judgments given
in the applicants' favour have not been enforced, the delays ranging
from two years and ten months to five years and eight months.
- 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 (see, for instance, Sokur v. Ukraine,
cited above, §§ 36-37 and Sharenok v. Ukraine,
no. 35087/02, §§ 37-38, 22 February 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.
- 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 (see Derkach and Palek v.
Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December
2004).
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
applicants claimed the quantities of coal due to them under the
judgments of the Krasnyy Luch Court and penalty interest for late
execution of these judgments in respect of pecuniary damage.
- Additionally,
they claimed the following sums in compensation for non-pecuniary
damage
- Mr Nikolay
Sarafanov - EUR 2,000;
- Mr Nikolay
Kolbasa – EUR 2,000;
- Mr Nikolay
Kuzminskiy – UAH 5,000 (EUR 800);
- Mr Pavel
Lysenko - UAH 3,000 (EUR 480);
- Mr Yevgeniy
Seredin – UAH 3,000 (EUR 480); and
- Mr Pyotr
Solonkin - UAH 3,000 (EUR 480).
- The
Government submitted that the applicants' claims for pecuniary damage
should be rejected. They however agreed to pay the amounts claimed by
the applicants in respect of non-pecuniary damage.
- The
Court recalls that the judgments awarding the applicants certain
quantities of coal have not been enforced. It therefore finds that
the Government should enforce these judgments in settlement of the
applicants' claims for pecuniary damage. However, having regard to
the circumstances of the case and the submissions of the parties, the
Court also awards the applicants the amounts claimed by them in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also requested the Court to compensate them for the costs
and expenses incurred in connection with their Convention
proceedings, without specifying any amounts.
- The
Government requested the Court to rule on an equitable basis.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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, the Court recalls that the applicants,
represented by counsel, failed to specify any sums and did not
present any supporting documents. Regard being had to the information
in its possession and the above criteria, the Court gives 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 application admissible;
- 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 that there has been a violation of
Article 1 Protocol No. 1 of the Convention;
- Holds
(a) that
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the respondent State is to enforce the judgments of the
Krasnyy Luch Court given in the applicants' favour and to pay the
applicants the following sums in respect of non-pecuniary damage:
- to Mr Nikolay Sarafanov, EUR 2,000 (two
thousand euros);
- to Mr Nikolay Kolbasa, EUR 2,000 (two thousand
euros);
- to Mr Nikolay Kuzminskiy, EUR 800 (eight
hundred euros);
- to Mr Pavel Lysenko, EUR 480 (four hundred
eighty euros);
- to Mr Yevgeniy Seredin EUR 480 (four hundred
eighty euros); and
- to Mr Pyotr Solonkin, EUR 480 (four hundred
eighty euros)
plus any tax that may be chargeable;
(b) that
the above amounts shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(c) 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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
APPENDIX
List
of the judgments of the Krasnyy Luch Court in respect of coal
|
Applicant
|
The court decision (date)
|
The award of coal
(kilos)
|
|
Mr Sarafanov
|
18 May 2001
|
14,750
|
|
Mr Kolbasa
|
24 May 2001
|
11,800
|
|
Mr Kuz'minskiy
|
18 April 2001
|
14,750
|
|
Mr Lysenko
|
18 February 2004
|
20,650
|
|
Mr Seredin
|
18 February 2004
|
17,700
|
|
Mr Solonkin
|
18 February 2004
|
23,600
|
