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FIFTH
SECTION
CASE OF LOZYNSKYY AND OTHERS v. UKRAINE
(Application
no. 28562/02)
JUDGMENT
STRASBOURG
6
September 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 Lozynskyy and Others 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 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28562/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Ukrainian nationals, Mr Petro Mykhaylovych
Lozynskyy, Mrs Mariya Vasylivna Lozynska and Mr Viktor Fedorovych
Ashkurov (“the applicants”), on 28 July 2001. After the
death of Mr Ashkurov, his wife, Mr Ashurkova Raisa Ivanivna,
expressed her wish to pursue the application.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
11 April 2006 the Court decided to communicate the complaints
concerning the non-enforcement of judgments given 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
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant, Mr Petro Mykhaylovych Lozynskyy, was born in 1964;
the second applicant, Mr Viktor Fedorovych Ashkurov, was born in
1955; the third applicant, Mrs Mariya Vasylivna Lozynska, was born in
1965. All the applicants are Ukrainian nationals and reside in the
Bashtansky District of the Mykolayiv region.
A. Proceedings against the JSC “Peremoga”
- On
13 November and 18 December 2000 the Bashtanka Court, in three
separate judgments, ordered a private JSC “Peremoga”
(hereafter “the JSC”) to pay the applicants,
respectively, UAH 2335, 1798 and 1552.
- On
8 June 2001 the Bashtanka Court, upon the applicants' complaint,
declared unlawful the failure of the Bashtanka Bailiffs' Service
(hereafter “the Bailiffs”) to enforce the judgments of
13 November and 18 December 2000. The court
established that the Bailiffs had taken no steps to enforce the
judgments. In particular, no measures had been undertaken to attach
and sell the debtor's property.
- During
2002 the Bailiffs attached and sold the JSC's property, following
which the applicants were paid UAH 1,059, 910 and 1,368,
respectively.
- As
on 28 April 2004 the Mykolayiv Commercial Court declared the JSC
insolvent, the Bailiffs terminated the enforcement proceedings and
transferred the writs of execution to the liquidation commission.
- The
judgments' debts owed to the applicants were paid in total in
September 2005.
B. Proceedings against the Bailiffs' Service
- By
decisions of 21 September and 1 October 2001 the Bashtanka Court
awarded each applicant UAH 590
against the Bailiffs for non-pecuniary damage caused by the failure
to execute the judgments given in their favour against the JSC.
- On
8 January 2002 the Bailiffs instituted enforcement proceedings in
respect of the judgments of 21 September and 1 October 2001.
- On
16 September 2004 the writs of execution were returned to the
applicants unenforced due to the debtor's lack of funds.
II. RELEVANT DOMESTIC LAW
-
The relevant domestic law is summarised in the judgment
of Romashov v. Ukraine (no. 67534/01, §§ 16-19,
27 July 2004).
THE LAW
I. AS TO THE LOCUS STANDI OF MRS ASHKUROVA
- The
Court notes firstly the fact of the death of Mr Ashkurov, and the
wish of his widow to pursue the proceedings he initiated.
- The
Court considers that the widow of the applicant has standing to
continue the present proceedings in his stead. However, reference
will still be made to the applicant throughout the ensuing text.
II. ADMISSIBILITY
- The
applicants complained about the infringement of Article 6 § 1
and Article 1 of Protocol No. 1 caused by the lengthy non-enforcement
of the judgments given in their favour against the Bailiffs. They
also complained under Article 13 of the Convention that they had no
effective remedies for enforcing these judgments. The above
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 ....”
- The
Government observed that the applicants failed to exhaust the
domestic remedies as they did not re-submit the writs of execution.
- The
Court observes that it has already dismissed the Government's similar
contentions in the cases in which the non-enforcement of judgments
against State bodies was prevented because of the failure of the
State to take any measures, rather than by a Bailiff's misconduct
(see, for instance, Voytenko v. Ukraine, no. 18966/02, §
30-31, 29 June 2004).
- The
Court finds no reason to reach a different conclusion in the present
case and concludes that the applicants' complaints about the
non-enforcement of the judgments given against the Bailiffs raise
serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It
finds no ground for declaring this part of the application
inadmissible.
III. MERITS
A. The applicants' complaint under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
- In
their observations, the Government contended that there had been no
violation of these provisions of the Convention in the applicants'
respect.
- The
applicants disagreed.
- The
Court notes that the judgments given in the applicants' favour
against the Bailiffs remain unenforced for more than five years and
nine months.
- 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, Romashov, cited above,
§§ 42-46, and Voytenko, cited above, §§
53-55).
- 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 applicants' complaint under Article 13 of the
Convention
- The
Government referred to their observations about the non-exhaustion by
the applicants of effective domestic remedies (see paragraph 19
above).
- The
applicants insisted that they had had no effective domestic remedy in
respect of their complaints about the non-enforcement of the
judgments in their favour.
- The
Court concludes that the applicants 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 Voytenko, cited above, §§ 48). Accordingly,
there has been a breach of this provision.
IV. OTHER COMPLAINTS
- The
applicants further complained under Articles 6 § 1 and 13 of the
Convention and Article 1 of Protocol No. 1 to it about the lengthy
non-enforcement of the judgment s given in their favour against the
JSC.
- However,
in the light of all the materials in its possession and to the extent
that 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 or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 of the Convention.
V. 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
applicants claimed the judgments' debts (see
paragraph 10 above) indexed at the inflation rate and EUR 3,770
each as non-pecuniary damage.
- The
Government maintained that the applicants' claims were exorbitant and
non-substantiated.
- In
so far as the applicants claimed the amount awarded to them by the
judgments at issue, the Court considers that the Government should
pay them the outstanding debts (see paragraph 10 above) in settlement
of their pecuniary damage.
- As
regards the applicants' claim concerning the inflation losses, the
Court notes that it is 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).
- As
to the remainder of the applicants' just satisfaction claims, the
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicants EUR 1,800
(one thousand and eight hundred euros) each in respect of their
non-pecuniary damage.
B. Costs and expenses
- The
applicants failed to submit any claims; 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 complaints under Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
about the non-enforcement of the judgments given against the State
Bailiffs' Service 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
13 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 to each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the judgments
debts still owed to them as well as EUR 1,800 (one thousand and eight
hundred euros) each for non-pecuniary damage;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
