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FIFTH
SECTION
CASE OF DEREVENKO AND DOVGALYUK v. UKRAINE
(Applications
nos. 9956/05 and 13200/05)
JUDGMENT
STRASBOURG
29
November 2007
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 Derevenko and Dovgalyuk 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
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 9956/05 and 13200/05)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Viktor Leontiyovych Derevenko of Tarashcha born in 1954 and
Mr Volodymyr Semenovych Dovgalyuk of Oleksandriya born in 1945
(“the applicants”), on 22 February and 31 March 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
13 December 2005 the Court decided to communicate the
complaints concerning the delay in enforcement of the final 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 applications at the same time as their
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On
12 March 2003 the first applicant obtained a judgment of
the Tarashcha Court (Таращанський
районний
суд
Київської
області)
against the OJSC “Tarashcharayagropostach” (ВАТ
“Таращарайагропостач”),
awarding him 2,424.55 hryvnyas (UAH)
in salary arrears and other payments.
- On
19 March 2001 the second applicant obtained a judgment of
the Oleksandriya Court (Олександрійський
міський суд
Кіровоградської
області)
against the OJSC “ATP-13506” (ВАТ
АТП-13506),
awarding him UAH 2,765.02
in salary arrears.
- These
judgments were not appealed against, became final and the enforcement
proceedings were instituted to collect the judgments debts.
- On several occasions the bailiffs notified the
applicants that they were unable to collect the full amounts of the
awards, referring to the fact that financial assets of the
debtor-companies were insufficient. They further explained that other
assets could not be sold, as the State owned more than 25% of the
debtor-companies' share capital. The companies were therefore subject
to the Law of 29 November 2001 “on the Introduction
of a Moratorium on the Forced Sale of Property”. The first
applicant attempted to challenge the alleged inactivity of the
bailiffs and to institute criminal proceedings against the
debtor-company's chief executive officer, however, his attempts were
to no avail.
- By
10 June and 12 August 2005 the judgments given in favour of the
second and the first applicant, respectively, were enforced in full.
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
I. JOINDER OF THE APPLICATIONS
- Pursuant
to Rule 42 § 1 of the Rules of Court, the Court
decides to join the applications, given their common factual and
legal background.
II. COMPLAINTS UNDER ARTICLES 6 § 1 AND 13
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ABOUT THE
DELAY IN THE ENFORCEMENT OF JUDGEMENTS
- The
applicants complained about the State authorities' failure to enforce
the judgments given in their favour in due time. They invoked
Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1. The impugned provisions
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 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 ....”
A. Admissibility
- The
Government provided no observations on admissibility of the above
complaints.
- The
Court notes that these 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
- In
their observations on the merits of the applicants' complaints, 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 notes that the judgments given in the applicants' favour were
not enforced for considerable periods of time. Notably, the periods
of debt recovery were two years and five months and four years and
two months, respectively.
- 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 Anatskiy v. Ukraine,
no. 10558/03, §§ 21-23, 13 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 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
first applicant additionally complained that the delay in payment of
his salary arrears amounted to a violation of his rights under
Article 2 of the Convention. He also complained under Articles 6 §
1 and 13 of the Convention about inability to institute criminal
proceedings against the debtor's chief executive officer.
- Having carefully examined these submissions in the
light of all the material in its possession and insofar as the
matters complained of are within its competence, the Court finds that
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.
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
- The
first applicant submitted that he had suffered pecuniary and
non-pecuniary damage on account of the prolonged inability to use his
money, particularly as at the material time he had been unable to
install heating in his house. However, he was not able to specify the
amount of this claim and requested the Court to rule on an equitable
basis.
- The
second applicant claimed 8,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government submitted that the applicants had failed to substantiate
their claims.
- The
Court agrees with the Government as regards the first applicant's
failure to substantiate his pecuniary damage claim, and, accordingly,
dismisses it.
- On
the other hand, the Court takes the view that both applicants must
have suffered some non-pecuniary damage as a result of the violations
found (see e.g. Silka v. Ukraine, no. 3624/03, § 23,
18 January 2007). Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
first applicant EUR 600 and the second applicant EUR 1,200
in respect of non-pecuniary damage.
B. Costs and expenses
- The
first applicant also claimed UAH 85.43 (EUR 15) for postal
expenses and submitted copies of receipts for postal services.
- The
second applicant claimed UAH 1,900 (EUR 275) in legal fees.
He presented a receipt for the above amount dated 26 September 2005,
which provides no specific information as to the nature of the legal
services received.
- The
Government did not comment on these submissions.
- 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, regard being had to the information in its
possession and the above criteria, the Court awards the first
applicant the full amount claimed in postal expenses.
- As
regards the second applicant's claim for legal fees, the Court finds
that it is not apparent from the applicant's submissions whether he
had applied for legal advice in connection with the facts giving rise
to the finding of a violation in the present case. Furthermore, as
regards the Convention proceedings, the Court observes that the case
was of no particular complexity, the applicant was granted leave to
use Russian language, and the lawyer made no submissions on his
behalf. In these circumstances, 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
- Decides to join the applications;
- Declares the complaints under Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
concerning the delay in enforcement of the judgments in the
applicants' favour admissible and the remainder of the applications
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 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine the
complaint under Article 13 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the following
amounts in respect of non-pecuniary damage and costs and expenses:
- Mr Viktor
Derevenko – EUR 615 (six hundred and fifteen euros);
- Mr Volodymyr Dovgalyuk – EUR 1,200 (one
thousand two hundred 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' claim
for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
