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FIFTH
SECTION
CASE OF RAKITIN v. UKRAINE
(Application
no. 7675/04)
JUDGMENT
STRASBOURG
11 January
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 Rakitin 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,
Mr J. Borrego Borrego,
Mr M. Villiger,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 4 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7675/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Borys Borysovych
Rakitin (“the applicant”), on 18 December 2003.
- The
applicant was represented by Mr Ruslan Anatoliyovych
Ulyanov, a lawyer practising in Kremenchuk. The Ukrainian Government
(“the Government”) were represented by their Agent, Mr
Y. Zaytsev.
- On 5 December 2005 the Court decided to
communicate the complaints under Articles 6 § 1 and 13
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 1948 and lives in Kremenchuk, the Poltava
region.
- On 8 April 2003 the Kryukivsky District Court
of Kremenchuk (the “District Court,” Крюківський
районний суд
м. Кременчука
Полтавської
області) ordered
the Kremenchuk Tax Inspectorate (the “Tax Inspectorate,”
Кременчуцька
об'єднана державна
податкова
інспекція)
to pay the applicant UAH 113,984.80,
the amount of overpaid tax.
- On
29 May 2003
the Kryukivsky District Bailiffs' Service of Kremenchuk (“the
Bailiffs,” Відділ
Державної
виконавчої
служби Крюківського
районного
управління
юстиції м. Кременчука)
instituted enforcement proceedings in respect of the above
judgment.
- On
4 November 2003 the Tax Inspectorate refused to pay the
judgment debt and maintained that it should be due from the State
Treasury.
- On 26 December 2003
the Bailiffs requested the District Court to explain how to enforce
the judgment of 8 April 2003.
- On
29 December 2003 the District Court found that the judgment debt was
to be paid directly from the State Budget and ordered the State
Treasury of Kremenchuk (the “Treasury,” Кременчуцьке
відділення
Державного
казначейства
України) to pay
the award due to the applicant.
- At
the request of the Treasury, on 20 May 2004 the District
Court gave a new explanation as to the enforcement of the judgment of
8 April 2003. In particular, the court ordered that the
payment be made from the banking account of the Tax Inspectorate.
- On
16 March 2005 the Tax Inspectorate informed the Bailiffs
that the sum of the tax overpaid by the applicant had been
transferred to the State budget and provided the requisites of the
respective account managed by the Treasury.
- At
the request of the Bailiffs, on 8 August 2005 the District
Court modified its explanation of 20 May 2004 and confirmed
that the Bailiffs should collect the award due to the applicant from
the above Treasury's account.
- On
21 June 2006 the judgment of 8 April 2003 was enforced in
full.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Vasylyev
v. Ukraine, (no. 10232/02, §§ 19-22,
13 July 2006).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgment of 8 April 2003 in due time. He invoked
Article 6 § 1 of the Convention and Article 1
of Protocol No. 1. He further complained that he had no
effective domestic remedies for his Convention complaints as required
by Article 13 of the Convention. 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 ....”
I. ADMISSIBILITY
- The
Government raised objections, contested by the applicant, regarding
exhaustion of domestic remedies similar to those which the Court has
already dismissed in other judgments concerning non-enforcement of
judgments against the State entities (see e.g., Vasylyev v. Ukraine,
cited above, §§ 30-31). The Court considers that the
present 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 8 April 2003
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. For the same reasons, the Court declares
admissible the applicant's complaint under Article 13 of the
Convention.
II. MERITS
A. The applicant's complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
- 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 the Kryukivsky District Court of
Kremenchuk of 8 April 2003 remained unenforced for more
than three years and two months. It also notes that the judgment debt
was paid to the applicant only after the communication of the
application to the respondent Government.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases raising issues similar to the present application (see, for
instance, Volosyuk v. Ukraine, no. 60712/00,
§§ 37-38, 29 June 2006 and Vasylyev v. Ukraine,
cited above, §§ 34-36).
- 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.
B. The applicant's complaint under Article 13 of the
Convention
- The
Government contended that the applicant had had effective channels of
complaint on the same basis that they had argued that the applicant
had not exhausted domestic remedies. Having rejected the latter
argument above (at paragraph 16), the Court concludes that the
applicant did not have an effective domestic remedy, as required by
Article 13 of the Convention, to redress the damage created by
the delay in the present proceedings (see Vasylyev cited
above, § 41). Accordingly, there has been a breach of this
provision.
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
1. Pecuniary damage
26. The applicant claimed the unsettled
judgment debt of UAH 113,984.80 (EUR 18,610.40) in
pecuniary damage and an additional sum of UAH 41,481.40
(EUR 6,788.04)
for inflation losses. As an alternative to a compensation for
inflation losses, the applicant claimed UAH 69,933.70
(EUR 11,418.10) for the loss of profit based on the average
interest rate of 16% offered by domestic commercial banks.
27. The Government noted that the
judgment debt had been paid to the applicant in full and maintained
that the applicant should have claimed compensation for inflation
losses at the domestic level. They further submitted that the
applicant's claim for the loss of profit was unsubstantiated.
- The
Court recalls that on 21 June 2006 the applicant had
received the judgment debt due to him (see paragraph 13 above) and
therefore dismisses this part of the claim.
- As
regards the applicant's claim concerning the inflation losses, the
Court considers that the applicant was absolved from pursuing the
litigation suggested by the Government (see, as a recent authority,
Levin v. Russia, no. 33264/02, § 31,
2 February 2006). However, the Court notes that the
applicant's calculations are not supported by any official documents,
which would enable the Court to determine the amount. 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).
- Finally,
as regards the applicant's claim for the loss of profit, the Court
finds that the applicant's submissions are speculative and does not
discern any causal link between the violations found and the damage
alleged. It therefore rejects this part of the claim (see e.g.,
Prodan v. Moldova, no. 49806/99, § 73, ECHR
2004 III (extracts)).
2. Non-pecuniary damage
31. The applicant further claimed
EUR 15,000 in respect of non pecuniary damage.
32. The Government maintained that this
claim was exorbitant and unsubstantiated.
33. The Court takes the view that the
applicant has suffered some non pecuniary damage as a result of
the violations found which cannot be made good by the Court's mere
findings. Nevertheless, the 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 1,000 under this
head.
B. Costs and expenses
- The
applicant also claimed UAH 45,000 (EUR 7,364)
in legal fees.
- The
Government noted that this amount was unsubstantiated and excessive
and invited the Court to determine the compensation due to the
applicant on an equitable basis.
- 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 they were reasonable
as to quantum. In the present case, regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 600 covering
costs under all heads.
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 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
13 of the Convention;
- Holds that there has been a violation of
Article 1 of Protocol No. 1;
- 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 1,000
in respect of non-pecuniary damage and EUR 600 in respect of
costs and expenses, 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 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 11 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
