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FIFTH
SECTION
CASE OF DONICHENKO v. UKRAINE
(Application
no. 19855/03)
JUDGMENT
STRASBOURG
5
April 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 Donichenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 13 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19855/03) 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 Ivan Petrovych
Donichenko (“the applicant”), on 30 May 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
3 April 2006 the Court decided to give notice of 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. It also decided to
give priority to the case under Rule 41 of the Rules of Court in
view of the applicant's age.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1919 and lives in the village of Lebedyn.
A. Court proceedings
- On
16 August 2000 the applicant instituted proceedings in the
Boryspil Town Court against the Boryspil Town Police Department and
the State Treasury, seeking compensation. The applicant alleged that
Messrs K. and M. had unlawfully attempted to enter and search
his flat and insulted him in the presence of
his neighbours. Messrs K. and M. took part in the
proceedings as third parties. On 30 August 2000 the court found
against the applicant. On an unspecified date the Kyiv Regional Court
of Appeal quashed that decision and remitted the case for a fresh
consideration.
- On
11 September 2001 the Boryspil Town Court found in part for the
applicant and awarded him UAH 12,125.09
in compensation for non-pecuniary damage and court expenses. On an
unspecified date the Kyiv Regional Court of Appeal quashed that
decision and remitted the case for a fresh consideration.
- On
24 May 2002 the Boryspil Town Court ruled in part for the
applicant. It found that two acting police officers, Messrs K.
and M., had been ordered by the Boryspil Town Police
Department to check the applicant's flat. On 25 April 2000,
in the course of execution of the above order, they had unlawfully
attempted to enter the applicant's flat and had made
abusive statements in his respect. The court held that the State
authorities were responsible for the acts of the police officers and
ordered the State Treasury to pay the applicant UAH 2,393.09
in compensation for non-pecuniary damage and court expenses. The
court, referring to Article 25 of the Police Act (see
paragraph 18 below), further ordered Messrs K.
and M. to apologise for their unlawful actions in the presence of the
applicant and his neighbours who had witnessed the incident.
- On
1 July 2002 the same court rejected the applicant's request for
leave to appeal for failure to pay court fees and to comply
with other procedural formalities. On 9 August
2002 and 2 January 2003, respectively, the Kyiv Regional
Court of Appeal and the Supreme Court of Ukraine upheld the decision
of 1 July 2002.
B. Enforcement proceedings
- On
26 April 2003 the Pecherskyy District Bailiffs' Service initiated
enforcement proceedings in respect of the monetary award of 24 May
2002.
- On
27 August 2003 the applicant was paid the full amount of the award.
- On
5 September 2003 the applicant submitted to the Boryspil Town
Bailiffs' Service a writ of execution for the non-pecuniary part of
the judgment.
- On
8 September 2003 the Bailiffs' Service initiated enforcement
proceedings in respect of the obligation of Mr K. to apologize
to the applicant.
- On
3 and 14 October 2003 the Bailiffs' Service fined Mr K. for
his failure to comply with the judgment of 24 May 2002.
- On
22 October 2003 the Bailiffs discontinued the enforcement proceedings
against Mr K., no reasons having been given for this decision.
- On
23 March 2004 Mr K. retired. His present place of residence is
unknown.
- On
25 April 2006 Mr M. together with two other police officers
visited the applicant's place of residence. According to the
Government, the applicant and his daughter received the apologies
from Mr M. for the events of 25 April 2000. The applicant stated that
he had been absent during that visit.
- On
14 September 2006 the Trudova Slava local newspaper (газета
“Трудова
Слава”) published an
announcement which read as follows:
“...[Mr M.], an employee of the MIA [Ministry of
Internal Affairs], officially apologizes to [Mr] Donichenko, Ivan
Petrovych, for the moral damage caused to him by the police officer
in the course of exercise of his duties in 2001.”
II. RELEVANT DOMESTIC LAW
A. The Police Act of 20 December 1990
- Article
25 of the Police Act regulates the questions of legal responsibility
of the police officers.
- Paragraph
1 of that Article provides that police officers shall act
in accordance with the Police Act, shall make decisions on their own,
and that they shall be disciplinary or criminally liable for their
unlawful acts or inactivity.
- Pursuant
to paragraph 2, if a police officer violates citizen's rights or
lawful interests, the police shall adopt measures necessary for
restoration of these rights and for payment of compensation for
pecuniary damage. The police shall also publicly apologise upon the
citizen's request.
- Paragraph
3 releases the police officer from a responsibility to compensate
damages, if he carried out his duties in accordance with law. The
damage shall be compensated at the expense of the State.
- Under
paragraph 4, the lawfulness of the acts of a police officer may be
challenged before the police, prosecutors or courts.
- Paragraph
5 provides that a person serving in the police, who violated the law
or failed to carry out his duties, shall be liable in accordance with
the law.
B. The Constitution of Ukraine
- The
above provisions of the Police Act are applied in the light of the
Constitution, adopted on 28 June 1996, and, in particular, the
following provisions:
Article 56
“Everyone shall have a right to compensation from
public or municipal bodies for losses sustained as a result of
unlawful decisions, acts or omissions by public or municipal bodies
or civil servants in the performance of their official duties.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the State authorities' failure to enforce
the judgment of the Boryspil Town Court of 24
May 2002 in full and in due time. He invoked Article 6 § 1
of the Convention which provides, insofar as relevant, as follows:
“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. ...”
- The
applicant argued that, while the money awarded by the above judgment
was paid to him with a substantial delay, the non-pecuniary part of
the judgment remained unenforced.
- The
Court notes that this aspect of the application concerns two parts of
the judgment at issue, namely the monetary award and the
non-pecuniary obligation, the length of the non-enforcement of which
vary considerably. Therefore, the Court will examine the complaints
concerning the two parts of the impugned judgment separately.
A. Admissibility
1. The applicant's complaint about the length of the
non-enforcement of the monetary award of 24 May
2002
- The
Government contended that the delay in the payment of the monetary
award to the applicant did not exceed the “reasonable time”
requirement contained in Article 6 § 1 of the Convention. They
therefore proposed that this part of the application be declared
inadmissible.
- The
applicant disagreed.
- The
Court observes that the enforcement proceedings in respect of the
award of 24 May 2002 commenced on 26
April 2003 and were completed by the Bailiffs' Service on 27
August 2003. Therefore, the period during which the
enforcement proceedings were pending lasted around four month. The
Court notes that, given its findings in previous, similar cases
against Ukraine (see, for instance, Kornilov and Others v. Ukraine
(dec.), no. 36575/02, 7 October 2003), this period is
not so excessive as to disclose any appearance of a breach of the
Convention. It follows that this part of the application is
manifestly ill-founded within the meaning of Article 35 § 3, and
must be rejected pursuant to Article 35 § 4 of
the Convention.
2. The applicant's complaint about the failure of the
State authorities to enforce the non-pecuniary obligation under the
judgment of 24 May 2002
a. Responsibility of the State
- The
Government contended that the obligation to apologise under the
judgment of 24 May 2002 was imposed
on Messrs M. and K. as private persons and the State therefore
could not be held responsible for their failure to fulfil it in due
time.
- The
applicant disagreed.
- The
Court notes that under the domestic law in force at the material
time, in particular Article 25 of the Police Act, the police bore
responsibility for implementation of measures necessary to remedy a
violation of citizen's rights because of the acts of its employees
(see paragraph 20 above). The same provision envisaged several
remedies for such violation, including restoration of the citizen's
rights, compensation for damages, and public apologies. The above
provisions of the Police Act was further reinforced by Article 56 of
the Constitution which guaranteed everyone a right to compensation
from public authorities for losses sustained as a result of unlawful
decisions, acts or omissions of these authorities or their agents in
the performance of their official duties (see paragraph 24 above).
- The
Court further notes that, in its judgment of 24 May 2002, the
Boryspil Town Court found that the applicant's right to a good
reputation had been infringed by the police officers, acting in their
official capacity. The court held the domestic authorities
responsible for the acts of these officers. It further decided that
the non-pecuniary damage caused to the applicant was to be
compensated at the expense of the State Budget.
- In
the Court's view, the fact that the two police officers were
mentioned personally in the operative part of the judgment at issue,
and not the police station to which they were attached or the
Ministry of Interior, did not release the police, and, accordingly,
the State, from their responsibility to remedy the faults of their
agents.
- In
these circumstances the State must be held responsible for the full
enforcement of the judgment of 24 May 2002, including its
non-pecuniary part.
b. The applicant's victim status
- The
Government submitted that, given that Mr M. had presented his
apologises to the applicant personally and through a newspaper, the
judgment of 24 May 2002 had been
enforced in full. The applicant could therefore no longer claim to be
a victim of a violation of his rights under Article 6 § 1.
- The applicant argued that he had not received
apologies from Messrs M. and K. in the presence of his
neighbours. Thus, the former had not fulfilled their obligations
under the judgment of 24 May 2002.
- The
Court, assuming that the judgment may be regarded as enforced once
Mr M. has published his apologies in September 2006,
recalls that the fact that the judgment in the applicant's favour was
enforced does not deprive him of his victim status in relation to the
period during which it remained unexecuted (see Voytenko v.
Ukraine, no. 18966/02, §§ 34-35, 29 June 2004).
Accordingly, the Court rejects the Government's preliminary objection
as to the applicant's lack of victim status.
c. Conclusion
- The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention about the delay in the enforcement of the
non-pecuniary part of the judgment of the Boryspil Town Court of
24 May 2002 raises issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring it inadmissible.
B. Merits
- In
their observations, the Government submitted that the Bailiffs'
Service took all necessary measures aimed at ensuring compliance of
Messrs K. and M. with their obligations under the judgment
at issue. The Government further maintained that the State had no
other means at its disposal to make the latter apologize to the
applicant.
- The
applicant disagreed.
- The
Court recalls that it has already found violations of Article 6
§ 1 of the Convention in cases in which the State has failed to
honour its obligations under the final and binding judgments for a
considerable period of time (see, among others, Romashov v.
Ukraine, no. 67534/01, § 42-46, 27 July 2004).
- As
to the present case, the Court observes that Messrs M. and K.
have not done exactly what the Boryspil Town Court had ordered them
to do in its judgment of 24 May 2002. The Court also
observes that Mr K. has resigned from the police service in 2004
and that the Government is not aware of his current whereabouts. The
Court notes that on 14 September 2006 Mr M., who still
serves in the police, has published his apologies to the applicant in
a local newspaper. Although Mr M. has made a reference to
the year other than the one in which the incident at issue took
place, the Court considers that in the particular circumstances of
the instant case the police must be regarded as having fulfilled its
obligation to publicly apologize for the incident, as envisaged in
the domestic legislation (see paragraph 20 above). Accordingly, the
Court finds that the non-pecuniary part of the judgment was complied
with on the latter date, the delay in its enforcement having been
approximately three years.
- The
Court further notes that the measures adopted by the Bailiffs'
Service in the course of the enforcement proceedings and referred to
by the Government appeared ineffective. The Court considers that it
is not its task to decide what would have been the most appropriate
way for the State to ensure the full enforcement of the judgment.
Nonetheless, having regard to its finding concerning the State's
responsibility for enforcement of the judgment at issue (see
paragraphs 35-36 above), the Court finds that the domestic
authorities, including the police, by failing for such a considerable
period of time to comply with the obligation under the final and
binding judgment to apologize to the applicant for the unlawful
conduct of their agents, fell short of their obligations under
Article 6 § 1 of the Convention.
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it that the delay in the execution of the
non-pecuniary part of the judgment was justified in the present case.
- There
has, accordingly, been a violation of Article 6 § 1
of the Convention.
II. OTHER COMPLAINTS
- The
applicant complained under Article 6 § 1 of the
Convention about the outcome and unfairness of the proceedings,
disagreeing with the amount of the compensation awarded by the
judgment of the Boryspil Town Court of
24 May 2002.
- He
also complained about a violation of the right to respect for his
home on account of the unlawful attempts of Messrs
K. and M. to enter and search his flat. The applicant invoked
Article 8 § 1 of the Convention.
- As
concerns the latter complaint, the Court notes
that the applicant raised it before the national courts. Although he
disagreed with the judgment of the Boryspil Town Court of
24 May 2002, by which the court acknowledged the violation
of the applicant's rights to respect for his home and to good
reputation and awarded him compensation, the applicant failed to
contest it before the higher courts in accordance with procedural
requirements prescribed by law due to his own interpretation of these
requirements.
- Accordingly,
the applicant cannot be regarded as having exhausted domestic
remedies available to him under Ukrainian law in respect of both
complaints. It follows that this part of the application must be
rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
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 EUR 6,000 in respect of non-pecuniary damage.
- The
Government maintained that the applicant had not substantiated the
amounts claimed and submitted that the finding of a violation would
constitute sufficient just satisfaction.
- The
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant the amount of
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 complaint under Article 6 § 1
of the Convention concerning the length of the non-enforcement of the
non-pecuniary part of the judgment of the Boryspil
Town Court of 24 May 2002 admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 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 according to
Article 44 § 2 of the Convention, EUR 1,200
(one thousand two hundred euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable, to be converted into the
currency of the respondent State at the rate applicable on the date
of settlement;
(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
claims for just satisfaction.
Done in English, and notified in writing on 5 April 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
