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FIFTH
SECTION
CASE OF BAGRIY AND KRIVANICH v. UKRAINE
(Applications
nos. 12023/04 and 12096/04)
JUDGMENT
STRASBOURG
9
November 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 Bagriy and Krivanich 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 16 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 12023/04 and 12096/04)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Eduard Sergiyovych Bagriy (“the first applicant”) and
Mr Fedir Vasylyovych Krivanich (“the second applicant”),
on 10 March 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
7 July 2005 the Court decided to communicate the applications to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
first applicant was born in 1970. The second applicant was born in
1965. Both of them are Ukrainian nationals, who live in the city of
Kirovograd, Ukraine.
- On
unspecified dates the applicants retired from the army. Upon
retirement, the applicants became entitled to compensation for their
uniforms and travel expenses. As these compensations remained unpaid,
they instituted proceedings in the Kirovogradskiy District Court
(Місцевий
суд Кіровоградського
району) against their
former employer, a military unit. The first applicant instituted
proceedings in 2003 seeking compensation for his uniform and travel
expenses. The second applicant instituted proceedings in 2002 seeking
compensation for his uniform and moral damage.
- On
10 September 2003 the court awarded the first applicant UAH 1,740.91
for the uniform and UAH 360
for travel expenses. On 20 February 2003 the court awarded the
second applicant UAH 2,532.05
for the uniform and UAH 2,000
in compensation for moral damage.
7. The above judgments
have been enforced in part. The first applicant received UAH 360, the
outstanding judgment debt being 1,740.91.
The second applicant received UAH 3,805.04, the outstanding judgment
debt being UAH 732.05.
- In
January and February 2004, the Kirovograd Regional Department of
Justice informed the applicants that the rest of the amounts awarded
could not be paid due to the debtor's lack of funds and
that the procedure for the forced sale of assets belonging to
the debtor was barred by the Law of 26 November 2001 “On the
Introduction of a Moratorium on the Forced Sale of Property”
(Закон України
“Про введення
мораторiю на
примусову
реалiзацiю майна”).
9. On
18 June 2004 the Kirovograd Bailiffs' Service returned the writs of
execution to the applicants.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Voytenko
v. Ukraine (no. 18966/02, §§ 20-25, 29 June
2004).
THE LAW
I. JOINDER OF THE APPLICATIONS
- Pursuant
to Rule 42 § 1 of the Rules of Court, the Court joins
the applications, given their common factual and legal background.
II. ADMISSIBILITY
- The
applicants complained about the non-enforcement of the judgments of
the Kirovogradskiy District Court of 10 September 2003 and 20
February 2003. They invoked Article 6 § 1 of the
Convention 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 as to the exhaustion of domestic
remedies and the applicants' victim status similar to those which the
Court has already dismissed in a number of judgments (see, Voytenko
v. Ukraine, no. 18966/02, §§ 27-35, 29 June
2004 and Nosal v. Ukraine, no. 18378/03, §§
33-35, 29 November 2005). The Court considers that the present
objections must be rejected for the same reasons.
- The
Court finds that the applicants' complaints under Article 6 § 1
of the Convention about the delay in the enforcement of the judgments
of the Kirovogradskiy District Court 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. For the same reasons, the
applicants' complaints under Article 1 of Protocol No. 1
cannot be declared inadmissible.
III. MERITS
- The Government maintained that the length of the
enforcement proceedings in both cases was not excessive and the
Bailiffs' Service performed all necessary actions. The Government
contended that the applicants' entitlement to the awards was not
disputed and they were not deprived of their property. The Government
further maintained that the applicants had at their disposal
effective remedies explicitly provided for by domestic legislation to
challenge the non-enforcement of the court judgment given in their
favour.
- The
applicants disagreed. They submitted that there had been a
substantial delay in payments which had therefore deprived them of
the actual possession of their property. They also stated that no
fault for the delay in the enforcement proceedings could be
attributed to the bailiffs and that the judgments had remained
unenforced due to a lack of budget funding.
- The Court notes that the judgment in the first
applicant's favour has not been enforced in full for three years and
the judgment in the second applicant's favour has not been enforced
in full for three years and seven months.
- The
Court recalls that it has already found violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases like the present applications (see, Voytenko v. Ukraine,
cited above, §§ 26-55; Nosal v. Ukraine, cited
above, §§ 33-47).
- Having examined all the material submitted to it, 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 cases.
- There has, accordingly, been a violation of
Article 6 § 1 of the Convention and of
Article 1 of Protocol No. 1.
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
- Both
applicants claimed their judgment debts. They also claimed
non-pecuniary damage of EUR 10,000 each.
- The Government contended that it was not obliged to
pay the above debts due to the applicants, as they had neither
appealed against the Bailiffs' decisions of 18 June
2004 to return the writs of execution, nor resubmitted them at
a later date. They further contended that the applicants' claims for
non-pecuniary damage should be dismissed as unsubstantiated and that
the finding of a violation would constitute sufficient just
satisfaction in these cases.
- In so far as the judgments in the applicants'
favour have not been paid, the Court considers that, if the
Government were to pay the judgments debts
owed to the applicants, it would constitute full and final settlement
of their claims for pecuniary damage. As to the applicants' claims
for non-pecuniary damage, the Court considers them excessive. Making
its assessment on an equitable basis as required by Article 41 of the
Convention, the Court awards the sum of EUR 800 the first
applicant and EUR 1,000 to the second applicant in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed legal fees and postal expenses. However they
neither indicated the amounts requested nor submitted any document in
this respect.
- The
Government maintained that these claims should be dismissed as
unsubstantiated.
- 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 was reasonable as to
quantum.
- The
Court notes that the applicants did not submit any evidence of their
expenses. However, the applicants may have incurred some costs
and expenses in connection with their Convention proceedings. Regard
being had to the Court's case-law and the information in its
possession, the Court awards EUR 100 to each applicant in respect of
costs and expenses (see, mutatis mutandis, Romanchenko
v. Ukraine, no. 5596/03, § 38, 22 November
2005).
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
- Decides to join the applications;
- Declares the applications 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 of the Convention;
- Holds
(a) that the respondent State is to pay Mr Bagriy, 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 the EUR 800 (eight
hundred euros) in respect of non-pecuniary damage and EUR 100 (one
hundred euros) in respect of costs and expenses;
(b) that the respondent State is to pay Mr Krivanich,
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 the EUR
1,000 (one thousand euros) in respect of non-pecuniary damage and EUR
100 (one hundred euros) in respect of costs and expenses;
(c) that the above amounts shall 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;
(d) 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 9 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
