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FIFTH
SECTION
CASE OF PRYPIYALO v. UKRAINE
(Application
no. 75801/01)
JUDGMENT
STRASBOURG
31 January 2008
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 Prypiyalo v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Mark
Villiger, judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75801/01) 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 Mykhaylo Andriyovych
Prypiyalo (“the applicant”) on 27 March 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z. Bortnovska, Mrs V. Lutkovska and Mr Y.
Zaytsev.
- On
19 January 2004 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 1927. He died on 23 May 2005. In a letter of 17
January 2006, the applicant's wife Mrs Yelisaveta Vadymivna Prypiyalo
(Ratushna) informed the Court that she wished to pursue the
application.
A. Expropriation proceedings
- In
August 1972 the Prosecutor of the Cherkassy District (Прокурор
Черкаського
району)
brought proceedings against the applicant's late mother
claiming that her house in the town of Smila should be expropriated
as having been built without proper authorisation of the competent
local authorities. On 9 March 1973 the People's
Court of the Cherkassy District (Народний
суд Черкаського
району)
allowed this application. On 11 April 1973 this judgment was upheld
on appeal.
- On
27 December 1989 the Supreme Court of the Ukrainian Soviet
Socialistic Republic (Верховний
Суд УРСР),
acting as a supervisory instance, quashed the above judgment and
remitted the case for rehearing.
- After
several rounds of court proceedings on 30 January 1992 the Smiliansky
Town Court (Смілянський
міський суд)
dismissed the prosecutor's application and found the
expropriation of the house concerned unlawful. On 4 March 1992 the
Cherkassy Regional Court (Черкаський
обласний суд)
rejected the appeal of the Smila Town Council and upheld this
judgment.
B. Eviction proceedings
- As
the expropriated house was rented by the Smila Town Council to third
persons, the applicant brought proceedings for their eviction. This
claim was eventually dismissed by the Cherkassy Regional Court on
7 June 1995.
C. Compensation proceedings
1. Judicial stage
- On
an unspecified date in 1997 the applicant instituted proceedings
against various municipal and State authorities claiming damages
incurred by the unlawful expropriation of the disputed house.
- On
6 March 1998 the Sosnivsky District Court
(Соснівський
районний суд,
hereafter “the Sosnivsky Court”)
rejected the applicant's claim as unsubstantiated. On 13 March 1998
the Cherkassy Regional Court upheld the applicant's appeal, quashed
this judgment and remitted the case to the Sosnivsky Court for a
fresh consideration.
- On
an unspecified date the Cherkassy Regional Court withdrew the case
from the Sosnivsky Court and examined it in the first instance.
- On
22 October 1999 the Cherkassy Regional Court partly allowed the
applicant's claim, awarding him UAH 12,839.36
in compensation for the unlawful expropriation of the house, to be
paid by the Cherkassy Regional Department of the State Treasury of
Ukraine (Управління
державного
казначейства
України в Черкаській
області).
- On
16 February 2000 the Supreme Court of Ukraine (Верховний
суд України)
upheld this judgment.
2. Enforcement stage
- On
15 June 2000 the Sosnivky District Bailiffs' Service (Відділ
державної
виконавчої
служби Соснівського
районного
управління
юстиції)
instituted the enforcement proceedings.
- On
10 July 2000 the applicant brought proceedings in the Sosnivsky Court
challenging the inactivity of the bailiff, assigned to deal
with his enforcement case.
- By
letter of 22 December 2000, the Deputy Head of the Cherkassy Regional
Department of Justice (Черкаське
обласне управління
юстиції)
informed the applicant that the judgment of 22 October
1999 could not be executed due to the lack of funds in the State
budget.
- On
31 January 2001 the Sosnivsky Court rejected the applicant's
complaint against the bailiff as being unsubstantiated.
- On
7 March 2001 the Cherkassy Regional Court upheld this judgment.
- By
letter of 27 June 2002, the Head of the Cherkassy Regional Department
of the Ministry of Justice of Ukraine informed the applicant that the
domestic legislation did not provide for the procedure to enable this
judgment debt to be paid from the State Budget.
- On
17 February 2004 the Sosnivsky District Bailiffs' Service lodged an
application with the Cherkassy Regional Court of Appeal (Апеляційний
суд Черкаської
області,
hereafter “the Court of Appeal”)
claiming that the debt concerned is owed to the applicant by the
State Treasury of Ukraine as a whole and
not by its Department in the Cherkassy region and that, accordingly,
the enforcement case should be processed by the Pechersky District
Bailiffs' Service of Kyiv (Відділ
Державної
виконавчої
служби Печерського
району м. Києва),
where the central office of the Treasury is located.
- On
12 March 2004 the Court of Appeal allowed this application and
ordered the writ of execution to be forwarded to the Pechersky
District Bailiffs' Service, which was done on 2 April 2004.
- On
22 April 2004 the Pechersky District Bailiffs' Service refused to
accept this writ, on the ground that under the Law of Ukraine “On
Enforcement Proceedings” the applicant's award had to be
enforced by the Department of Compulsory Execution of Judgments of
the State Bailiffs Service (відділ
примусового
виконання
рішень Державної
виконавчої
служби).
- By
letter of 25 March 2005 the Deputy Head of the Department of
Compulsory Execution of Judgments of the State Bailiffs Service
informed the Agent of the Government that the writ of execution
concerned had never been received by this Department.
- The
judgment in the applicant's favour remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of 29
June 2004 in the case of Voytenko v. Ukraine (no.
18966/02, §§ 20-25).
THE LAW
I. PRELIMINARY OBSERVATION
- The applicant died on 23 May 2005, while the case was
pending before the Court (see paragraph 5 above). It has not been
disputed that his wife is entitled to pursue the application on his
behalf and the Court sees no reason to hold otherwise (see, mutatis
mutandis, Kalló v. Hungary, no. 30081/02,
§ 25, 11 April 2006 and Sildedzis v. Poland,
no. 45214/99, § 30, 24 May 2005).
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 IN THE COURSE OF THE
COMPENSATION PROCEEDINGS
- The
applicant complained about allegedly unreasonable length of the
proceedings concerning compensation for unlawful expropriation. The
applicant also complained of the State authorities' failure to
execute the judgment of 22 October 1999 in due time. He invoked
Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1, which provide, in so far 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 ....”
A. Admissibility
- The
Government raised objections regarding the applicant's exhaustion of
domestic remedies similar to those which the Court has already
dismissed in a number of judgments (see, Voytenko, cited
above, §§ 27-35, Bakalov v. Ukraine, no.
14201/02, §§ 24-26, 30 November 2004 and Nosal
v. Ukraine, no. 18378/03, §§ 33-35, 29 November
2005). The Court considers that the present objections must be
rejected for the same reasons.
- The Court, noting that the court proceedings and the
enforcement proceedings are stages one and two in the total course of
proceedings and thus the enforcement proceedings should not be
dissociated from the action and the proceedings are to be examined in
their entirety (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 197 and, as a recent authority,
Sika v. Slovakia, no. 2132/02, §§ 24-27,
13 June 2006), concludes that the applicant's complaints under
Article 6 § 1 of the Convention about the length of
the proceedings concerning compensation and about the delay in the
enforcement of the judgment of the Cherkassy Regional Court are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. These complaints must therefore be declared
admissible. For the same reasons, the applicant's complaints under
Article 13 and Article 1 of Protocol No. 1 about the
authorities' failure to enforce a judgment in his favour cannot be
declared inadmissible.
B. Merits
- The applicant submitted that the length of the
proceedings in his case was excessive and that there had been a
substantial delay in payment of the court award which had therefore
deprived him of the actual possession of his property.
- The Government did not submit any observations as
regards the judicial part of the proceedings. As regards the
enforcement stage, they acknowledged the need to enforce the judgment
given in favour of the applicant. They maintained that the State
performed all necessary actions in order to enforce it in the nearest
future and that the judgment had remained unenforced due to a lack of
budget funding and relevant legislative measures. The Government
further maintained that the applicant had at his disposal effective
remedies to challenge the non-enforcement of the judgment given in
his favour. In their further submissions the Government contended
that the applicant had failed to re-submit the writ of execution
after 22 April 2004 and thus the State was not responsible for
non-enforcement of the judgment after this date.
- As regards the judicial proceedings for compensation,
it is to be noted that the exact date when the applicant's claim was
filed with the domestic courts cannot be established on the basis of
his submissions. In any case the period to be taken into
consideration could not begin earlier than 11 September 1997,
when the Convention entered into force with respect to Ukraine. The
final decision in this case was taken on 16 February 2000
by the Supreme Court. The length of proceedings in the judicial phase
is therefore two years and four months for three levels of
jurisdiction and there is no discernible period of inactivity which
can be attributed to the domestic courts.
- However, the Court observes that the judgment of the
Cherkassy Regional Court of 22 October 1999, which became enforceable
immediately upon its issuance, has not been executed for over seven
years and nine months.
- The
Court reiterates that it is inappropriate to require an individual
who has obtained judgment against the State at the end of legal
proceedings to then bring enforcement proceedings to obtain
satisfaction (see, for example, Scordino v. Italy
(no. 1) [GC], cited above, § 198 and Lizanets
v. Ukraine, no. 6725/03, § 43, 31 May 2007).
It, therefore, rejects the Government's argument that the applicant's
failure to resubmit his writ of execution to the State Bailiffs'
Service has deprived him of his right to payment of the debt owed to
him by the State.
- The
Court recalls that it has already found violations of Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
in cases like the present application (see, Voytenko v. Ukraine,
cited above, §§ 26-55; Nosal v. Ukraine,
cited above, §§ 33-47).
- Having examined all the material submitted to it, 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
Articles 6 § 1 of the Convention and of
Article 1 of Protocol No. 1.
- The Court does not find it necessary in the
circumstances to examine the same complaint under Article 13 of
the Convention (see Derkach and Palek v. Ukraine, nos.
34297/02 and 39574/02, § 42, 21 December 2004).
III. OTHER COMPLAINTS
- The applicant complained under Article 6 of the
Convention about the length of the expropriation and eviction
proceedings. He further complained about a violation of Articles 3
and 8 of the Convention on account of the non-enforcement of the
judgment in his favour.
- The
Court, in the light of all material before it, finds that in so far
as the matters complained of are within its competence, they do not
disclose any appearance of an unjustified interference or breach of
these provisions and rejects this part of the application in
accordance with Article 35 §§ 3 and 4 of the
Convention as being manifestly ill-founded.
IV. 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, costs and expenses
- The
applicant claimed pecuniary damage corresponding to the sum awarded
to him by the judgment of 22 October 1999. He further claimed EUR
20,000 in respect of non-pecuniary damage and costs and expenses
incurred during the domestic proceedings.
- The Government contended that they were not obliged to
pay the above debt due to the applicant, as he had neither appealed
against the Bailiffs' decision of 22 April 2004 not to
open the enforcement proceedings, nor re-submitted the writ of
execution at a later date. They further contended that the
applicant's claim for non-pecuniary damage was exorbitant and
unsubstantiated, and that the finding of a violation would constitute
sufficient just satisfaction in the case.
- In so far as the judgment in the applicant's
favour has not been paid, the Court, referring to its findings above
(paragraphs 33-37) considers that the full and final settlement of
the applicant's claim for pecuniary damage would be the payment of
the judgment debt owed to him (see paragraph 12 above).
- As
to the applicant's claim for non-pecuniary damage – EUR 20,000
– the Court considers it excessive. However, the Court
considers that the applicant must have sustained non-pecuniary damage
as regards the non-enforcement of the judgment given in his favour.
The Court, making its assessment on an equitable basis, as required
by Article 41 of the Convention, awards the applicant the sum of
EUR 2,000 in respect of non-pecuniary damage.
- As regards the applicant's claim for costs and
expenses, the Court reiterates that only legal costs and expenses
found to have been actually and necessarily incurred and which are
reasonable as to quantum are recoverable under Article 41 of the
Convention (see, for example, Peck v. the United Kingdom,
no. 44647/98, § 127, ECHR 2003 I). In the
present case, the applicant neither indicated any concrete amount nor
produced any evidence in support of his claim for costs and expenses
allegedly incurred during the proceedings before the domestic courts.
The Court, therefore, does not award any compensation under this
head.
B. 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 in respect of the compensation proceedings and
complaints under Article 13 of the Convention and Article 1 of
Protocol No 1 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;
4. Holds that it is not necessary to examine the applicant's
complaint under Article 13 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant's
wife, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the
Convention the judgment debt still owed to the applicant, as well as
EUR 2,000 (two thousand euros) in respect of non-pecuniary
damage, to 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;
(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 claim
for just satisfaction.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
