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FIFTH
SECTION
CASE OF LAZARENKO v. UKRAINE
(Application
no. 26855/05)
JUDGMENT
STRASBOURG
19
November 2009
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 Lazarenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Mark Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva,
judges,
Mykhaylo Buromenskiy, ad hoc judge,
and
Stephen Phillips, Deputy Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26855/05) 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 Viktor Tymofiyovych
Lazarenko (“the applicant”), on 30 June 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuri Zaytsev.
- On
15 October 2008 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Oleksandriya.
- On
28 May 2004 the Oleksandriya Court (Олександрійський
міськрайонний
суд Кіровоградської
області)
ordered the State-owned company Oleksandriyavugillya to pay
the applicant 14,632.02 Ukrainian hryvnias (UAH)
in salary arrears and other payments. The judgment became final, but
remains only partially enforced due to the debtor company’s
lack of funds, the outstanding debt being UAH 2,189.18.
- On
an unspecified date liquidation proceedings were started against
Oleksandriyavugillya and the applicant’s writ of execution was
transferred to the company’s liquidation commission.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The applicant complained about the authorities’
failure to execute, in due time, the judgment of 28 May 2004. He
relied on Articles 6 § 1 and 13 of the Convention and Article 1
of Protocol No. 1. The Court, master of the characteristic to be
given in law to the facts of a case, finds that the applicant’s
complaint falls to be considered solely under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1. These provisions
read, 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
... hearing within a reasonable time by [a] ... tribunal ...”
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 or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government submitted that the applicant had not exhausted domestic
remedies as he had not lodged a claim with the domestic courts to
challenge the actions or inactivity of the bailiffs and the
liquidation commission.
- The
applicant disagreed.
- The Court considers that, in the light of its findings
in similar cases, the Government’s objection must be rejected
(see Romashov v. Ukraine, no. 67534/01, §§ 28-33,
27 July 2004 and Shmalko v. Ukraine, no. 60750/00, §§
35-40, 20 July 2004).
- The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further considers that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
- The Government reiterated that they had taken all
measures provided for by the domestic legislation to enforce the
judgment given in the applicant’s favour and that the delay in
enforcement was caused by the difficult financial situation of the
debtor company.
- The
applicant disagreed.
- The
Court notes that the judgment of the Oleksandriya Court of 28 May
2004 remained unenforced for more than five years.
- The Court observes that it has frequently found
violations of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 in cases raising similar issues to the
present application (see Romashov v. Ukraine §§
42-47 and Shmalko v. Ukraine §§ 47 and 57,
cited above; Solovyev v. Ukraine, no. 4878/04,
§§ 20-24, 14 December 2006; Sokur v. kraine,
no. 29439/02, § 37, 26 April 2005 and Anatskiy v.
Ukraine, no. 10558/03, § 23, 13 December 2005).
- 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 Article 6 § 1
of the Convention and Article 1 of Protocol No. 1.
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 the judgment debt due to him and
EUR 5,000 in respect of non-pecuniary damage.
- The
Government contested this claim.
- 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 in settlement of his pecuniary damage. 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 2,100 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed UAH 915.53
in costs and expenses for legal assistance and correspondence with
the Court. The applicant submitted documentary evidence that he had
spent UAH 41.49
on correspondence with the Court. He also submitted documentary
evidence (copies of receipts) that he had spent UAH 750
on legal assistance in the proceedings before unspecified courts.
- The
Government contested the claim concerning the costs allegedly
incurred by the applicant for legal assistance. They left the matter
concerning the expenses for correspondence with the Court to the
Court’s discretion.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. The Court notes that in the present case
the applicant represented himself before the Court and the domestic
courts. The Court further notes that the applicant failed to submit
an itemised schedule of costs and expenses incurred. Therefore,
regard being had to the information in its possession and the above
criteria, the Court rejects the claim for costs and expenses.
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,
the
outstanding judgment debt due to him;
EUR
2,100 (two thousand and one hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(b) that
the latter amount shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the latter 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 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
