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FIFTH
SECTION
CASE OF MITIN v. UKRAINE
(Application
no. 38724/02)
JUDGMENT
STRASBOURG
14
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 Mitin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Javier
Borrego Borrego,
Renate
Jaeger,
Mark
Villiger,
judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38724/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Aleksandr Nikolayevich
Mitin (“the applicant”), on 10 September 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
22 September 2005 the Court decided to give notice of 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 lives in the city of Sevastopol,
Ukraine.
A. First set of proceedings
- At
the material time the applicant was a military officer. In November
1998, on an order from his superior, a commanding officer of the
A-3009 military unit, he was appointed to a lower post and imposed
disciplinary sanctions for various infractions.
- In
June 1999 the applicant brought proceedings in the Sevastopolskiy
Garrison Military Court (Військовий
суд Севастопольського
гарнізону)
against his commanding officer claiming that he had been sanctioned
unfairly. The applicant sought moral damages.
- After
several round of courts proceedings, on 20 August 2001 the Navy
Military Court of Appeal (Апеляційний
суд Військово-Морських
Сил України,
hereafter “the Navy Court”),
acting as a first instance court, found that the disputed
disciplinary sanctions had been imposed on the applicant contrary to
the relevant military regulations and awarded him 5,000
Ukrainian hryvnas (UAH) against the military unit for moral damages.
Considering this sum insufficient the applicant appealed in
cassation. On 10 January 2002 the Supreme Court (Верховний
Суд України)
upheld this judgment.
- On
5 November 2001 the Nakhimovskiy District Bailiffs' Service (Відділ
державної
виконавчої
служби Нахімовського
районного
управління
юстиції м.
Севастополя,
hereafter “the Nakhimovskiy Bailiffs' Service”)
instituted enforcement proceedings.
- After
having attempted, in vain, to withdraw the awarded sum from the
account of the military unit concerned, on 21 June 2002 the bailiffs
returned the writ of execution to the applicant because of the
debtor's lack of funds. The applicant never resubmitted it to the
Bailiff's Service.
- In
September 2002 the applicant attempted to bring administrative
proceedings against the Nakhimovskiy Bailiffs' Service for its
alleged inactivity. On 26 September 2002 his application was found
inadmissible by the Nakhimovskiy District Court of Sevastopol
(Нахімовський
районний суд
м. Севастополь)
on the ground of the applicant's failure to pay court fees and to
specify his claims.
- The
applicant filed, to no avail, a number of criminal complaints against
his commanding officer with various prosecutors and courts.
- The
Government stated that in late 2005 the commanding officer on several
occasions invited the applicant to visit the A-3009 military unit in
order to collect the money due to him under the Navy Court's
judgment. The letters to this effect were sent to the applicant's
last known address. The applicant denied having received those
letters, stating that his new address was known to the authorities.
In particular it was indicated in his letters to the Court, the
copies of which were sent to the Agent of the Government by the Court
Registry.
- On
26 December 2005 the A-3009 military unit paid UAH 5,000 in cash to
the applicant's pension account. The Government did not produce any
document related to this event. As the applicant objected to an
unauthorised transaction in his account, the bank transferred this
amount back to the account of the military unit.
- On
14 March 2006 the military unit A-3009 opened an account in the
applicant's name in the Oshchadbank Bank. According to the copy of
bank receipt produced by the Government the reason for this
transaction was specified as a “transfer of compensation for
moral damage in accordance with a court decision of 20 August 2001 to
Mr Mitin”.
B. Second set of proceedings
- In
early 2004 the applicant was dismissed from the military forces.
- In
May 2004 he instituted proceedings in the Sevastopolskiy Garrison
Military Court (Військовий
суд Севастопольського
гарнізону)
challenging his dismissal.
- On
14 October 2004 the court rejected the applicant's claim as being
unsubstantiated. On 21 December 2004 the Navy Court rejected the
applicant's appeal and upheld this judgment. On 9 March 2005 the
Supreme Court rejected the applicant's appeal in cassation.
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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained of the lengthy non-enforcement of the Navy
Court's judgment of 20 August 2001 in his favour. He relied on
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
which, in so far as relevant, provide 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
1. Applicability of Article 6 of the Convention
- The Government submitted that Article 6 § 1
was inapplicable to the proceedings at issue, as the dispute
concerned a military officer's career and therefore was not a “civil”
dispute for the purposes of the impugned Convention provision. They,
therefore, invited the Court to declare this part of the application
inadmissible as being incompatible ratione materiae within the
meaning of Article 35 § 3.
- The applicant disagreed.
- The Court notes that at the material time the
applicant was an active military officer, and his disputes concerned
different conditions of his employment. In a recent judgment Vilho
Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62,
19 April 2007) the Grand Chamber proposed two criteria of
applicability of Article 6 to such disputes. According to this
judgment Article 6 under its “civil” head shall be
applicable to all disputes involving civil servants, unless the
national law expressly excludes access to a court for the post of
category of staff in question, and this exclusion is justified on
objective grounds.
- In
the present case the applicant's claims were accepted, examined, and
partially granted by the domestic courts following ordinary rules of
civil procedure. Although it is true that the applicant's case
involved the examination of the lawfulness of disciplinary sanctions
imposable under specific military regulations, there is nothing to
suggest that the proceedings concerning moral damage incurred by an
individual as a result of unlawful actions by a state official falls
outside the scope of Article 6 of the Convention.
- Therefore,
the applicant, despite his special status, was not excluded by the
domestic law from the “access to a court” within the
meaning of Article 6. The Court concludes that Article 6 is
applicable to the domestic proceedings at issue.
2. Exhaustion of domestic remedies
- The Government argued that the applicant has failed to
exhaust all domestic remedies available to him under the law, as he
did not resubmit his writ of execution to the competent Bailiffs'
Service.
- The applicant disagreed.
- The
Court reiterates in this respect 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.
3. Conclusion
- The Court notes that the applicant's complaints under
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 concerning the non-enforcement of a judgment in the applicant's
favour 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.
B. Merits
- The
applicant claimed that the lengthy non-enforcement of a court
judgment in his favour infringed his right to peaceful enjoyment of
possessions guaranteed by 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 Article 1 of Protocol No. 1 (as in the cases
of Romashov v. Ukraine, no. 67534/01, § 37, 27
July 2004 and Voytenko, cited above § 37).
- The
Court should first establish the period during which the judgment of
the Navy Court of 20 August 2001 remained unenforced. It notes in
this respect that in late 2005 the commanding officer of the A-3009
military unit allegedly invited the applicant to appear in order to
repay him the awarded amount. However, those letters were sent to the
applicant's old address whereas the authorities were aware of the
applicant's new address from, inter alia, his letters to the
Court, the copies of which were sent by the Court Registry to the
Government Agent. Therefore, the Court finds that the relevant period
did not end in 2005.
- The
Court further observes that on 26 December 2005 the A-3009 military
unit transferred UAH 5,000 in cash to the applicant's pension
account. As the Government have failed to show that such action was
provided by the domestic law as a legal means of executing court
judgments or that the applicant was informed of the reason for this
transaction, the Court does not find his refusal to accept this money
unreasonable.
- As
regards the account opened in the applicant's name in the Oshchadbank
Bank, the Court notes that the applicant did not suggest that he was
not informed of the fact that this account was opened or of the
reason why it had been done. Nor did he suggest that this money was
inaccessible for him. Accordingly, the Court considers that by
opening on 14 March 2006 a bank account in the applicant's name the
authorities enforced – for the purpose of Article 6 § 1 of
the Convention – a court judgment in the applicant's favour.
- The
Court, therefore, finds that the Navy Court's judgment of 20 August
2001 remained unenforced for four years and five months.
- The
Court recalls that it has already found violations of Article 1 of
Protocol No. 1 in cases raising issues similar to the
present application (see, for example Voytenko, cited above,
§§ 53-55 and Vodopyanovy v. Ukraine, no. 22214/02,
§§ 31-36, 17 January 2006).
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that his
appointment to a lower post and the imposition of sanctions
constituted degrading treatment. He further complained under Articles
6 § 1 and 13 of the impossibility to institute a criminal case
against the command of his military unit. Relying on Article 6 the
applicant complained about a violation of his right of access to
court referring to the domestic courts' refusal to consider on the
merits his complaints about the non-enforcement of the judgment in
his favour. The applicant also complained under Article 6 of the
Convention about an unfair hearing and the outcome of the proceedings
in the civil case concerning his dismissal. He finally invoked
Articles 14 and 17 of the Convention without any further
specification.
- 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.
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 EUR 2,013,900 euros (EUR) in respect of
non-pecuniary damage.
- The
Government considered that the applicant did not suffer any damage
and that, in any case, his demands were excessive.
- Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court considers it reasonable to award the
applicant a global sum of EUR 1,200 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant claimed EUR 3,000 for costs and expenses incurred before
the domestic authorities without providing any documents in support
of this claim.
- The
Government considered this claim unsubstantiated.
- 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 did not produce any evidence in support of his claim for
costs and expenses allegedly incurred during the proceedings before
the domestic authorities. It, therefore, does not award any
compensation under this head.
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 complaints under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 concerning the
non-enforcement of a judgment 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
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 1,200 (one
thousand 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 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
