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FIFTH
SECTION
CASE OF SUKHOPAR v. UKRAINE
(Application
no. 16267/04)
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 Sukhopar 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 R. Maruste,
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. 16267/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Mykola Petrovych Sukhopar (“the
applicant”) on 23 April 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
5 December 2005 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 1955 and lives in the town of Bogodukhiv,
Kharkiv region, Ukraine.
- In
1980 the applicant was seriously injured while working in the
Mushketivska State Mine. As a result, he became an invalid.
- On
22 August 2003 the Bogodukhiv Town Court ordered the
Ukrvuglerestrukturyzatsiya State Company to pay the applicant a lump
sum of UAH 4,418.63
in occupational disability arrears and other payments. It also
ordered the Bogodukhiv Town Social Security Fund to pay the applicant
a monthly allowance of UAH 405.07.
- On
4 November 2003 the Kharkiv Regional Court of Appeal partly changed
the decision of 22 August 2003. It awarded the applicant a lump sum
of UAH 7,380.56
against the company and a monthly allowance of UAH 415.64
from the fund, to be calculated from 1 September 2003.
- On
26 November 2003 the Bogodukhiv Town Court sent the writ of execution
in respect of the aforementioned judgment to the Voroshilovskiy
District Bailiffs' Service of Donetsk.
- On
29 May 2005 the Bailiffs' Service informed the applicant that the
Ukrvuglerestrukturyzatsiya State Company had been restructured, and
invited the applicant to specify name of the Mine where he worked, in
order to determine the debtor's successor in the applicant's case.
- The
judgment of 4 November 2003 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July
2004).
THE LAW
I. ADMISSIBILITY
A. Complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1
- The
applicant complained about the State authorities' failure to enforce
the judgment of the Kharkiv Regional Court of Appeal of 4 November
2003. He 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 maintained that the applicant had not exhausted the
available domestic remedies as he failed to submit the writ of
execution to the Bailiffs' Service. Accordingly, the Bailiffs'
Service could not be blamed for alleged inactivity, as they were
deprived of a possibility to enforce the judgment in the applicant's
favour due to the latter's omission.
- The
applicant contended that this objection was fully unsubstantiated. He
maintained that on 26 November 2003 the Town Court had sent the writ
of execution to the Bailiffs' Service, which, at its turn, in May
2005 informed the applicant about further developments in the
enforcement proceedings (paragraphs 8 and 9).
- Assuming
that the applicant had to turn to the Bailiffs' Service for the
purposes of exhausting domestic remedies, the Court notes that the
applicant submitted copies of the aforementioned Town Court's letter
to the Bailiffs' Service and the latter's letter to the applicant.
The copies of these documents were sent to the Government, which did
not make any comment in this respect. Furthermore, having obtained a
judgment and an execution order against a particular State authority
the applicants should not be required to institute, on their own
initiative, other proceedings against different State agency to meet
their claims (see, Vasylyev v. Ukraine, no. 10232/02,
§ 30, 13 July 2006). Therefore, the Government's objection
should be dismissed.
- The
Court concludes that the application 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. Complaint under Article 14 of the Convention
- The
applicant further complained under Article 14 of the Convention
that he had been discriminated against on account of the
non-enforcement of the judgment given in his favour.
- The
Court finds no indication in the case-file which might disclose any
appearance of a violation of this provision. The Court, therefore,
rejects this part of the application, in accordance with Article
35 §§ 3 and 4 of the Convention, as being
manifestly ill-founded.
II. MERITS
- In
their observations, the Government contended that there had been no
violation of either Article 6 § 1 of the
Convention or Article 1 of Protocol No. 1 since
the applicant had failed to submit the writ of execution to the
Bailiffs' Service.
- The
Court dismisses this argument referring to its finding above (see,
paragraph 15).
- The
Court further notes that the judgment of the Kharkiv Regional Court
of Appeal of 4 November 2003 has remained unenforced for around three
years so far.
- 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, Romashov, cited above, §§ 42-46, and
Voytenko v. Ukraine, no. 18966/02, §§ 53-55, 29 June
2004).
- 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 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 UAH 649,489,
including the amount of the judgment debt, in respect of pecuniary
damage caused by violation of Article 6 § 1 and Article 1 of
Protocol No.1, and UAH 600,000
in respect of non-pecuniary damage.
- The
Government maintained that the applicant's claim had to be rejected
as unsubstantiated.
- In so far as the applicant claimed the amounts awarded
to him by the judgment at issue, the Court considers that the
Government should pay him in full the judgment debt with
understanding that the monthly payment should be paid regularly. As
to the rest of the applicant's claim for pecuniary damage, the Court
does not discern any causal link between the violation found and the
pecuniary damage alleged; it therefore rejects this part of the
claim.
- As to the applicant's claim in respect of
non-pecuniary damage - UAH 600,000 - the Court considers this sum
excessive. Making its assessment on an equitable basis as required by
Article 41 of the Convention, the Court awards the applicant the sum
of EUR 1,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 200
in costs and expenses. However he did not submit any document in this
respect.
- The
Government maintained that this claim 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 were reasonable as to
quantum.
- The
Court notes that the applicant did not submit any evidence of his
expenses. However, the applicant may have incurred some costs
and expenses in connection with his Convention proceedings. Regard
being had to the Court's case-law and the information in its
possession, the Court awards the amount he claimed (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
- Declares the complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the Convention
admissible and the remainder of the application 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
(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
debts still owed to him, as well as EUR 1,031.6 (one thousand and
thirty-one euros and sixty cents) in respect of non-pecuniary damage,
and costs and expenses;
(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, plus any tax that may be chargeable;
(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 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
