[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KHURKUNOV v. UKRAINE
(Application
no. 5079/04)
JUDGMENT
STRASBOURG
18 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 Khurkunov 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 11 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5079/04) 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 Vladimir
Ivanovich Khurkunov (“the applicant”) on 22
December 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
3. On
15 March 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, a Ukrainian national was born in 1941 and lives in the
town of Zhovti Vody, the Dnipropetrovsk region, Ukraine.
- In
1998, 2000 and 2001 the applicant instituted three separate sets of
proceedings in the Zhovtovodskyi Town Court (hereinafter –
the Town Court) against the Joint Stock Company “Electron-Gaz”
(the “EG”) – in which the State held 99.9% of
the share capital – to recover unpaid salary and compensation.
By three judgments of 12 January 1999, 9 June 2000 and
21 February 2001 the court awarded the applicant the total
of UAH 8,634.89
in salary arrears and other payments.
- On
7 March 2003 the Commercial Court of
the Dnipropetrovsk Region initiated bankruptcy proceedings against
the EG, which are still pending.
- On
22 September 2003, in the course of bankruptcy proceedings
against the EG and following Article 86 of the Code of Commercial
Proceedings and Articles 14 and 15 of the Law of Ukraine “On
the Restoration of a Debtor's Solvency or the Declaration of
Bankruptcy”, the Commercial Court of the Dnipropetrovsk Region
ordered the inclusion of the Town Court's awards given in the
applicant's favour, as well as his additional claim for
UAH 4,332.05,
which the EG had recognised as salary arrears due him for 2000 -
2002, into the list of creditors' claims.
- On
17 May 2002 the applicant was informed by the Bailiffs'
Service that the judgments in his favour were not executed due to the
lack of funds of the debtor and that the procedure for the forced
sale of assets belonging to the debtor was barred by the Law on the
Introduction of a Moratorium on the Forced Sale of Property of 29
November 2001.
- In
August 2005 the judgments of 12 January 1999, 9 June
2000 and 21 February 2001 were fully enforced.
- On
7 April 2006 the applicant instituted one more set of proceedings
against the same debtor (EG) in the Town Court, seeking, inter
alia, compensation of UAH 4,332.05 recognized by the defendant as
salary arrears due him for 2000 - 2002. On 5 June 2006 the court
partly allowed his claim and ordered the defendant to pay him UAH
3,829.94
in salary arrears and UAH 500
in compensation of non-pecuniary damage. This decision was not
appealed against and became final.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
- Article
86 of Code of Commercial Proceedings provides that if the Commercial
Court does not examine the merits of the case, it issues a procedural
ruling.
- Article 14 of the Law of Ukraine “On the
Restoration of a Debtor's Solvency or the Declaration of Bankruptcy”
(Закон України
“Про відновлення
платоспроможності
боржника або
визнання його
банкрутом”)
envisages that the creditors of a bankrupt who claim salary arrears
may lodge relevant requests with the Commercial Court, before which
the bankruptcy proceedings are pending. Creditors' claims recognised
by the bankrupt should be included in the list of creditors' claims.
According to Article 15 of the Law, the Commercial Court issues a
ruling by which it approves the list of creditors' claims.
THE LAW
I. ADMISSIBILITY
A. Complaints under Articles 6 § 1 and 17 of the
Convention and Article 1 of Protocol No. 1
- The
applicant complained about the State authorities' failure to enforce
the judgments of the Town Court of 12 January 1999, 9 June
2000 and 21 February 2001 in due time. He invoked
Articles 6 § 1 and 17 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 ....”
Article 17
“Nothing in [the] Convention may be interpreted as
implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention.”
- The
Government raised objections regarding the exhaustion of domestic
remedies similar to those which the Court has already dismissed in
the case of Romashov v. Ukraine (see Romashov, cited
above, §§ 28-33) and Trykhlib v. Ukraine (see,
Trykhlib v. Ukraine, no. 58312/00, §§ 40-43,
20 September 2005). The Court considers that the present
objections must be rejected for the same reasons.
- The
Government further maintained that, although the debtor company was a
State-owned enterprise, it was a separate legal entity and the State
could not be held responsible for its debts under domestic law. In
this respect the Court refers to its findings in the case of
Mykhaylenky and Others v. Ukraine (nos. 35091/02 et seq.,
§§ 44-45, ECHR 2004 XII) that the respondent State's
Convention responsibility under Articles 6 and 1 of
Protocol No. 1 was engaged on account of the failure of a
State-owned enterprise to pay the applicants the amount awarded to
them in the final judgments given against that company. It sees no
reason to depart from this conclusion in the instant case.
- The
Court concludes that this part of 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. Other complaints
- The
applicant further complained that the State had infringed his right
to the peaceful enjoyment of his possessions as a result of the
failure to pay the salary arrears allowed by a procedural decision of
22 September 2003. He invoked Article 1 of
Protocol No. 1 to the Convention.
- The
Court considers that the applicant did not have a final enforceable
claim in respect of the aforementioned sum. The impugned decision was
only a procedural ruling given within the framework of the bankruptcy
proceedings, by virtue of which the Commercial Court regulated the
list of creditors' claims and did not decide on merits (see
paragraphs 12 and 13). Moreover, in order to receive this sum
the applicant had to lodge a valid claim with the Town Court, which
he did in April 2006 and the Town Court allowed his claim only in
part. Therefore, it cannot be said that the impugned amount
constituted a possession within the meaning of Article 1 of Protocol
No. 1 to the Convention. Consequently, this part of the application
should be rejected in accordance with Article 35 §§ 3
and 4 of the Convention, as being manifestly ill-founded.
II. MERITS
- The
Government contended that the applicant's entitlement to the judgment
awards had not been disputed and he was not deprived of his property.
They further maintained that the responsibility of the State in this
situation had been limited to the organisation and proper conduct of
enforcement proceedings and that the length of the enforcement
proceedings had been caused by the critical financial situation of
the debtor company. The Government stressed that the Bailiffs'
Service had performed all necessary actions and could not be blamed
for the delay.
- The
applicant disagreed.
- The
Court notes that the judgments of the Zhovtovodskyi Town Court of
12 January 1999, 9 June 2000 and 21 February 2001
remained unenforced for around six years and seven months, five years
and two months, and four years and six 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 cases raising issues similar to the present application (see, for
instance, Romashov, cited above, §§ 42-46, and
Mykhaylenky and Others, cited above, §§ 54-55
and §§ 63 64).
- 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.
In view of this conclusion, no separate issue arises under Article 17
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.”
- The
applicant submitted his claim for just satisfaction out of time.
- The Court observes that the applicant failed to comply
with the requirements set out in Rule 60 § 2 of the Rules of
Court. In these circumstances, it makes no award under this head
(Rule 60 § 3).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the lengthy
non-enforcement of the judgments in the applicant's favour 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 that no separate issue arises under
Article 17 of the Convention;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 18 January 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
