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FIFTH
SECTION
CASE OF OLEG SEMENOV v. UKRAINE
(Application
no. 25464/03)
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 Oleg Semenov 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. 25464/03)
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
Oleg Petrovich Semenov (“the applicant”), on 1 July
2003.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Z. Bortnovska.
- On
27 November 2003 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 1975 and lives in the town of Nova Kakhovka,
Kherson Region, Ukraine. He is a former employee of the State owned
OJSC “Pivdenelektromash” (“the Company,”
ВАТ “Південелектромаш”).
- The background facts for the case are described in the
case of Semenov v. Ukraine (no. 25463/03, §§ 5-8,
13 December 2005).
- On 5 December 2002 the Nova Kakhovka City Court
(Новокаховський
міський суд
Херсонської
області) ordered the
Company to pay the applicant UAH 4,393
in salary arrears. This judgment became final and the writs of
execution were transferred to the Bailiffs' Service.
- By
letters of 26 February 2003 and 15 April 2003, the Bailiffs' Service
and the Kherson Regional Department of Justice informed the applicant
that the enforcement proceedings had been suspended due to the
proceedings of financial rehabilitation of the debtor.
- On
11 August 2003 the Nova Kakhovka City Court rejected the applicant's
complaint about the allegedly unlawful inactivity of the Bailiffs'
Service. The court stated that there was no fault attributable to the
defendant.
- On
15 January 2004 the Bailiffs' Service resumed the execution
proceedings in the applicant's case. On 23 January and 10 February
2004, it ordered the seizure of the Company's accounts. However, on
27 February 2004 the Kherson Regional Commercial Court, on the
trustee's appeal, quashed these decisions because the Bankruptcy Act
envisaged the obligatory suspension of enforcement proceedings
pending the resolution of a bankruptcy case.
10. The
judgment in the applicant's favour remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and
Trykhlib v. Ukraine
(no. 58312/00, §§ 25-32, 20
September 2005).
THE LAW
- The
applicant complained of the failure of the State authorities to
enforce the judgment of 5 December 2002 given in his favour. He
alleged an infringement of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the
Convention which provide, in so far as relevant, as follows:
Article 6 § 1 of the Convention
“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 or to secure the payment of taxes or other
contributions or penalties.”
I. ADMISSIBILITY
- The
Government submitted that the applicant had failed to exhaust
domestic remedies, as required by Article 35 § 1 of the
Convention, since he had not appealed against the judgment of the
Nova Kakhovka City Court of 11 August 2003, whereby his complaints
about the Bailiffs' inactivity were rejected, and he had not applied
to the Kherson Regional Commercial Court for registration as a
creditor in the bankruptcy proceedings.
- The
Court notes that these matters have already been discussed and
dismissed in a number of its previous judgments (see, for example,
the aforementioned cases of Romashov and Trykhlib, §§
23-32 and 36-42, respectively). It finds no reason to draw different
conclusions in the present case and it therefore rejects the
Government's objection.
- The Court notes that the application 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.
II. MERITS
- The
Government maintained that the lengthy non-enforcement of the
judgment in the applicant's favour had been caused by the ongoing
bankruptcy proceedings against the debtor Company and its
critical financial situation. The Government further maintained that
the Bailiffs' Service had performed all necessary actions and could
not be blamed for the delay. The applicant disagreed.
- The
Court notes that the judgment of 5 February 2002 has remained
unenforced for a period of four years and eight months.
- The Court further 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 company –
the OJSC “Pivdenelektromash” (see, for instance,
Trykhlib v. Ukraine, cited above, §§ 52-53;
Semenov v. Ukraine, cited above, §§ 24 25,
Chernyayev v. Ukraine, no. 15366/03, §§ 19-20
and 23-25, 26 July 2005 and Anatskiy v. Ukraine,
cited above, §§ 21-22).
- 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 the unsettled debt due to him under the judgment at
issue by way of compensation for pecuniary damage. Additionally, he
claimed UAH 100,000
in respect of non-pecuniary damage.
- The
Government submitted that these claims should be rejected as
unsubstantiated.
- The
Court notes that, as the judgment of the Nova Kakhovka Court of 5
February 2002 remains unenforced, the Government should pay the
applicant the outstanding debt in order to satisfy his claim for
pecuniary damage.
- The
Court further takes the view that the applicant has suffered some
non-pecuniary damage as a result of the violations found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant the sum of EUR 1,800
in respect of non-pecuniary damage.
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 under this head.
C. Default interest
27. 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 has been a violation of Article
1 of Protocol No. 1 to 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, the judgment
debt still owed to him, as well as EUR 1,800 (one thousand eight
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
