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FIFTH
SECTION
CASE OF SUKHOY v. UKRAINE
(Application
no. 18860/03)
JUDGMENT
STRASBOURG
21
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 Sukhoy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 27 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18860/03) 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 Aleksandr Grigoryevich
Sukhoy (“the applicant”), on 20 May 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z. Bortnovska, succeeded by Mrs V. Lutkovska,
succeeded by Mr. Y. Zaytsev.
- On
21 June 2004 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 judgment in the applicant's 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 applicant was born in 1955 and lives in Zhovti
Vody, the Dnipropetrovsk region. He is a former employee of the OJSC
“Electron Gaz” (“the Company,” ВАТ
“Електрон-Газ”).
At the material time the State owned 99.96% of the Company's share
capital. The Company was therefore subject to the Law of
29 November 2001 “on the Introduction of a Moratorium
on the Forced Sale of Property.”
- On
6 October 2000 the Zhovti Vody Court (Жовтоводський
міський суд
Дніпропетровської
області) ordered
the Company to pay the applicant UAH 12,514.76
in salary arrears. This judgment became final and the
enforcement writ was transferred to the Zhovti Vody Bailiffs' Service
(“the Bailiffs,” Відділ
Державної
виконавчої
служби
Жовтоводського
міського управління
юстиції)
for enforcement.
- On
26 December 2002 the Bailiffs informed the applicant that
the enforcement of the judgment of 6 October 2000 was
delayed on account of the Company's lack of funds. It also stated
that the attachment of the Company's property was impeded by the Law
of 2001 “on the Introduction of a Moratorium on the Forced Sale
of Property.”
- On
7 March 2003 the Dnipropetrovsk Commercial Court
(Господарський
суд Дніпропетровської
області) instituted
bankruptcy proceedings against the Company and on 10 October 2003
ordered its rehabilitation to be completed by 10 October 2004.
- On
21 October 2004 the applicant received the debt due to him
by the judgment of 6 October 2000.
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. ADMISSIBILITY
A. Complaints under Article 6 § 1
and Article 1 of Protocol No. 1
- The
applicant complained about the State authorities' failure to enforce
the judgment of 6 October 2000. He invoked Article 6 § 1
of the Convention (in substance) 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 ....”
- The
Government raised objections, contested by the applicant, regarding
exhaustion of domestic remedies similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement against
the State-owned companies (see e.g. among many others, Trykhlib v.
Ukraine, no. 58312/00, §§ 38-43, 20 September 2005
and Mykhaylenky and Others v. Ukraine, nos. 35091/02 and
following, §§ 38-39, ECHR 2004 XII). The
Court considers that these objections must be rejected for the same
reasons.
- The
Court concludes that the applicant's complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 about the
delay in the enforcement of the judgment of 6 November 2000
raise issues of fact and law under the Convention, the determination
of which requires an examination on the merits. It finds no ground
for declaring these complaints inadmissible. The Court must therefore
declare them admissible.
B. Complaint under Article 17 of the Convention
- The applicant additionally complained that the
introduction of the 2001 Law, barring the sale of the assets of the
State-owned enterprises, violated Article 17 of the Convention. The
Court finds no evidence whatsoever in the case file which might
disclose any appearance of a breach of this provision (see, e.g.,
Kosareva v. Ukraine, no. 17304/03, § 10, 13 December
2005). The Court, therefore, rejects this part of the application, in
accordance with Article 35 §§ 3 and 4 of the Convention, as
being manifestly ill-founded
II. MERITS
- In
their observations on the merits of the applicant's 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
applicant disagreed.
- The Court notes that the judgment of 6 October 2000
remained unenforced for four 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 a number of similar cases, including the cases concerning the same
State-owned debtor - the OJSC “Electron-Gaz” (see, for
instance, Ilchenko v. Ukraine, no. 17303/03, §§ 23-26,
29 November 2005 and Oleynik and Baybarza v. Ukraine,
no. 5384/03, §§ 18-21, 20 December 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 Article 1 of
Protocol No. 1.
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 UAH 2,500 (EUR 403) in respect of
pecuniary damage relating to the loss of value of the judgment debt.
This claim was not based on any calculation. He further claimed
EUR 3,000 in respect of non-pecuniary damage.
- The
Government maintained that the applicant's claims were
unsubstantiated and submitted that the finding of a violation, if
any, would constitute sufficient just satisfaction.
- As
regards the applicant's claim for the loss of value, the Court notes
that the applicant's calculations are not supported by any documents.
Consequently, it rejects this part of the claim (see e.g., Glova
and Bregin v. Ukraine, nos. 4292/04 and 4347/04, § 29,
28 February 2006). However, the Court considers that the applicant
must have sustained non-pecuniary damage. Nevertheless, the
particular amount claimed is excessive. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the applicant EUR 1,200 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
of the Convention and Article 1 of Protocol No. 1 to
the Convention admissible and the complaint under Article 17 of the
Convention 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 Protocol No. 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, EUR 1,200 (one
thousand two 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 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
