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FIFTH
SECTION
CASE OF SUDYIN v. UKRAINE
(Application
no. 5082/05)
JUDGMENT
STRASBOURG
24
April 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 Sudyin v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 25 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5082/05) 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 Yuriy Yuriyevich
Sudyin (“the applicant”), on 5 August 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
22 September 2005 the Court decided to communicate the complaint
concerning the non-enforcement of the final judgment 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 1974 and lives in Donetsk. At
the material time he was a tax inspector.
- On 4 July 1997 the Kyivsky
District Court of Donetsk (hereinafter “the District Court”)
fined the applicant UAH 225 under an administrative procedure for a
corruption offence. The applicant was consequently dismissed from his
position.
- On 17 November 1997 the Donetsk
Regional Court quashed this judgment and terminated the proceedings.
- On
22 May 2000 the District Court awarded the applicant UAH 500 in
compensation for moral damage to be paid by the State Treasury of
Ukraine.
- This
judgment was not appealed and became final on 2 June 2000.
- In June 2000 the Kyivsky Office
of the Bailiffs' Service in Donetsk
initiated the enforcement
proceedings.
- On 22 October 2004 the writ of
execution was transferred to the Pechersky Office of
the Bailiffs' Service in Kyiv, which on 7 December 2004 refused to
open the enforcement proceedings and transferred the writ to the
Department of the Bailiffs' Service of the Ministry of Justice
(hereinafter “the Department”).
- On 24 January 2005 the
Department refused to open the enforcement proceedings on the ground
that it fell outside of its competence.
- Since May 2005 the enforcement
proceedings are pending before the Donetsk Department of the
Bailiffs' Service.
- The judgment of 22
May 2000 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Voytenko
v. Ukraine (no. 18966/02, §§
20-25, 29 June 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- Relying
on Article 6 § 1 of the Convention and Article 1 of Protocol No.
1 the applicant complained about the non-enforcement of the judgment
given in his favour. These Articles 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 Court notes that this complaint 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
- The
Government abstained from submitting observations in the case.
- The
Court notes that the judgment of 22 May 2000
remains unenforced.
- The
Court recalls that it has already found violation 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, Voytenko v. Ukraine, cited above, §§
39-43 and 53-55).
- 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
- Lastly,
the applicant complained under Article 3 of
Protocol No.7 about an impossibility to receive compensation for a
wrongful conviction.
- However,
in the light of all the materials in its possession, the Court finds
that these submissions 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.
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 the amount of the judgment's debt owed to him
indexed at the inflation rate. He also claimed 10,000 euros (EUR) in
respect of non-pecuniary damage.
- The
Government rejected these claims.
- In
so far as the applicant claimed the amount awarded to him by the
judgment at issue, the Court considers that the Government should pay
him the outstanding debt (see paragraph 7 above) in settlement of his
pecuniary damage.
- As
regards the applicant's 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 applicant's just satisfaction claims, the
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant EUR 2,000
(two thousand euros) in respect of his non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 30 for the costs and expenses incurred
before the Court.
- The
Court considers it reasonable to award the applicant the sum
requested.
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 complaint concerning the
non-enforcement of the judgment of 22 May 2000
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;
- 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, the judgment's
debt still owed to him, as well as EUR 2,030 (two thousand and thirty
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage and costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement;
(b) 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
