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FIFTH
SECTION
CASE OF SKRYPETS v. UKRAINE
(Application
no. 41236/06)
JUDGMENT
STRASBOURG
10
December 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 Skrypets v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41236/06) 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 Vitaliy Yaroslavovych
Skrypets (“the applicant”), on 30 September 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
20 May 2008 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in the town of Novyy Rozdil,
Ukraine.
- On
4 April 2003 the Mykolaivsky Court awarded the applicant 1,884.77
Ukrainian hryvnias (UAH)
in salary arrears and litigation expenses incurred by the applicant,
to be paid by the State-controlled enterprise OJSC Novorozdilsky
Zavod Fungytsydiv.
- On
8 May 2003 the State Bailiffs’ Service initiated enforcement
proceedings in respect of the judgment given in the applicant’s
favour.
- On
25 October 2006 the company was declared insolvent. The liquidation
proceedings instituted against the company are still pending.
- On
19 May 2006 the applicant received UAH 659.32 in part settlement of
the judgment debt.
- In
their submissions the Government stated that on 31 October 2008 the
applicant had also received UAH 150.78. The applicant did not
disagree.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND
13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained about the non-enforcement of the judgment given
in his favour and that there was no effective remedy in that respect.
He relied on 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...”
A. Admissibility
- The Government submitted that the applicant had failed
to exhaust domestic remedies as required by Article 35 § 1
of the Convention. In particular, they maintained that he had not
availed himself of the opportunity to be registered as a creditor in
the insolvency proceedings, and had failed to apply to any domestic
court against the Bailiffs’ Service to challenge the allegedly
inadequate enforcement of the judgment.
- The
applicant disagreed.
- The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (see Sokur v. Ukraine
(dec.), no. 29439/02, 16 December 2003; Sychev v.
Ukraine, no. 4773/02, §§ 42-46, 11 October
2005; and Trykhlib v. Ukraine, no. 58312/00,
§§ 38-43, 20 September 2005). The Court
considers that this objection must be rejected in the instant case
for the same reasons.
- The
Court notes that this 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, the Government contended that there had been no
violation of the provisions of the Convention in the applicant’s
respect. They further maintained that the State authorities had taken
all necessary measures to enforce the judgment in question.
- The
applicant disagreed.
- The
Court has frequently found violations of Articles 6 § 1 and 13
of the Convention and Article 1 of Protocol No. 1 to the Convention
in cases raising similar issues to those in the present case (see
Romashov, cited above, § 46, and Voytenko v. Ukraine,
no. 18966/02, §§ 43, 48 and 55, 29 June 2004).
- 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
and 13 of the Convention and a violation of 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
- In
respect of pecuniary damage, the applicant claimed payment of the
debt still owed to him under the judgment that had been given in his
favour. He further claimed 5,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government noted that the applicant’s right to have the
judgment in his favour executed had never been contested. They
contested the applicant’s claim in respect of non-pecuniary
damage
- The
Court finds that, as the judgment in the applicant’s favour
remains unenforced, the Government should pay him the debt still owed
under the judgment of 4 April 2003 in order to satisfy his claims in
respect of pecuniary damage. In addition, ruling on an equitable
basis, the Court finds it reasonable to award the applicant EUR 2,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no claims for costs and expenses. Therefore, the Court
makes no award 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 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
13 of the Convention;
4. Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds:
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
sums:
(i) the
outstanding debt under the judgment of 4 April 2003 in respect of
pecuniary damage;
(ii) 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 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 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
