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FIFTH
SECTION
CASE OF SIDNEV v. UKRAINE
(Application
no. 15145/05)
JUDGMENT
STRASBOURG
7
February 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 Sidnev 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 15 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15145/05) 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 Yevgen Anatoliyovych
Sidnev (“the applicant”), on 5 April 2005.
- The Ukrainian Government (“the Government”)
were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
7 September 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 1959 and resides in the
village of Blagodatne, Donetsk region, Ukraine.
- In
April 2004 the applicant instituted proceedings in the
Volnovakhskyy District Court against his employer, the Donetskugol
State Mining Company (ДП
«Донецьквугілля»),
for different payments due to him. On 22 June 2004 the court awarded
the applicant 38,524.28
Ukrainian hryvnas (UAH) (рішення
Волновахського
районного
суду).
- In
September 2004 the Voroshylovskiy District Bailiffs' Service of
Donetsk (відділ
державної
виконавчої
служби Ворошиловського
районного
управління
юстиції м. Донецька)
initiated enforcement proceedings.
- In
December 2004 the applicant instituted proceedings in the
Voroshylovskyy District Court of the Donetsk Region against the
Bailiffs' Service for the non-enforcement of the judgment in his
favour. On 5 April 2005 the court found for the
applicant and ordered the Bailiffs' Service to enforce the judgment
in question.
- Between
August 2005 and March 2006 the judgment of 22 June 2004 was enforced
in full.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
10. The
applicant complained about the lengthy non-enforcement of the
judgment of 22 June 2004. The Court will examine these complaints
under 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 ...”
A. Admissibility
- The Government raised objections regarding the
applicant's victim status similar to those which the Court has
already dismissed in the case of Romashov v. Ukraine
(no. 67534/01, §§ 23-27, 27 July 2004). The Court
considers that they must be rejected for the same reasons.
- The Government further contended that the applicant
had not exhausted all the remedies available to him under Ukrainian
law since he had not lodged complaints with the domestic judicial
authorities seeking compensation for losses incurred due to inflation
as the enforcement of the judgment was delayed.
- The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use the remedies that are sufficient in the domestic
legal system to enable them to obtain redress for the breaches
alleged. The Court notes that the applicant's complaint concerns the
lengthy non-enforcement of the judgment against a State-owned
company. In these circumstances, the Court does not see how the
remedy, suggested by the Government, would have expedited the
enforcement proceedings or grant full redress for his complaint. The
Court, therefore, concludes that the applicant was absolved from
pursuing the remedy invoked by the Government and has complied with
the requirements of Article 35 § 1.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- In
their observations on the merits of the case, the Government
contended that there had been no violation of Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1.
- The
applicant disagreed.
- The
Court notes that the judgment given in the applicant's favour
remained unenforced for one year 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 cases like the present application (see, among other authorities,
Voytenko v. Ukraine, no. 18966/02, §§ 43
and 55, 29 June 2004 and Dubenko v. Ukraine,
no. 74221/01, §§ 47 and 51, 11 January 2005).
The Court finds no ground to depart from its case-law in the present
case.
- There
has, accordingly, been a violation of Article 6 § 1
of the Convention in respect of the lengthy non-enforcement of the
judgment in the applicant's favour and a violation of Article 1
of Protocol No. 1 in the present application.
II. 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 EUR 300 in respect of pecuniary damage and
EUR 5,000 in respect of non-pecuniary damage.
- The
Government found these claims unsubstantiated and exorbitant as the
judgment in the applicant's favour was enforced in full.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant must have sustained
non-pecuniary damage as a result of the violation found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant EUR 200 in this
respect.
B. Costs and expenses
- The
applicant did not submit any claim under this head. 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 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
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 200 (two
hundred 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 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
