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FIFTH
SECTION
CASE OF OVCHAROV AND KHOMICH v. UKRAINE
(Applications
nos. 32910/06 and 50081/06)
JUDGMENT
STRASBOURG
28 May
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 Ovcharov and Khomich v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
judges,
Stanislav Shevchuk, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 5 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 32910/06 and 50081/06)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Stanislav Oleksiyovych Ovcharov and Mr Stepan Stepanovich Khomich
(“the applicants”), on 13 July and 24 November 2006
respectively.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
11 September 2007 the Court decided to communicate the applicants'
complaints under Articles 6 § 1 and 13 of the Convention to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Mr Ovcharov
- The
applicant was born in 1936 and lives in Nova Kakhovka, Kherson
region, Ukraine.
- On 17 December 2003 the Nova Kakhovka Town Court
awarded the applicant and his wife the total amount of 5,635.20
Ukrainian hryvnyas (UAH)
in damages caused by the Nova Kakhovka Housing Maintenance and
Utilities Company, Komunservis, (Новокаховське
ЖКП «Комунсервіс»),
a company owned and controlled by the local community, by its failure
to comply with contractual obligations. The awarded sum included
joint compensation in respect of pecuniary damage inflicted on the
applicant and his wife in the total amount of UAH 2,635.20 (the
court did not specify the precise amounts owed to the applicant and
his wife individually) and compensation in respect of non-pecuniary
damage in the amount of UAH 1,500 each.
- This
judgment became final and on 20 April 2004
the State Bailiffs' Service instituted proceedings to enforce it. In
the course of these proceedings the total amount of UAH 2,000
was paid to the applicant.
- On
23 December 2004 the Kherson Commercial Court instituted liquidation
proceedings against the debtor company.
- In
this regard on 4 January 2005 the State Bailiffs' Service terminated
the enforcement proceedings against the debtor company and
transferred the applicant's writ of enforcement to the liquidation
commission for further processing.
- On
29 August 2005 the debtor company was declared liquidated and
subsequently was removed from the relevant companies' register.
- Dissatisfied
with the lengthy non-enforcement of the judgment in their favour, in
January 2006 the applicant and his wife instituted proceedings in the
Nova Kakhovka Town Court against the State Bailiffs' Service,
claiming compensation in respect of pecuniary and non-pecuniary
damage. However, on 23 January 2006 the court discontinued the
proceedings as the defendant had been liquidated and the newly
established State Bailiffs' Service had not succeeded the liquidated
one. The applicant and his wife did not appeal against this decision.
- The
judgment of 17 December 2003 remains unenforced.
B. Mr Khomich
- The
applicant was born in 1948 and lives in Pryazovske, Zaporizhzhya
region, Ukraine.
- On 17 December 2001 the Pryazovske District Court
awarded the applicant UAH 2,758.58
in salary arrears due to him by his former employer, the Pryazovske
Housing Maintenance and Utilities Company (Приазовське
комунальне
підприємство
житлового
господарства)
owned by the local village council.
- On 20 December 2001 the village council decided to
liquidate the debtor company and set up a liquidation commission.
- The
judgment in the applicant's favour became final and the State
Bailiffs' Service instituted proceedings to enforce it. However,
according to the Government, in February 2002 these proceedings were
terminated and the applicant's writ of enforcement was transferred to
the liquidation commission for further processing.
- On
21 December 2004 the Zaporizhzhya Commercial Court instituted
liquidation proceedings against the debtor company.
- According
to the Government, on 27 February 2006 the debtor company was
liquidated.
- The
judgment of 17 December 2001 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The general provisions of domestic legislation on
enforcement of judicial decisions are set out in the judgment of
27 July 2004 in the case of Romashov v. Ukraine
(no. 67534/01, §§ 16-18).
- The
provisions of the Civil Code of 18 July 1963 (repealed on 1 January
2004) and the Civil Code of 16 January 2003 (in force since 1 January
2004) on owners' liabilities for the obligations of their legal
entities are set out in the case of Mykhaylenky and Others v.
Ukraine, nos. 35091/02 and foll., §§ 25-26, ECHR
2004 XII).
21. Article
143 of the 1996 Constitution of Ukraine provides:
“Territorial communities of a
village, settlement and city, directly or through the bodies of local
self-government established by them, manage the property that is in
municipal ownership; [...] establish, reorganise and liquidate
municipal enterprises, organisations and institutions, and also
exercise control over their activity; [...].”
22. Section
31 of the Property Act 1991 (repealed
by the Act of 27 April 2007)
provides that State property includes State property itself and the
property of administrative-territorial units (municipal
property).
- By
a letter of 27 December 2004 the Ministry of Justice of Ukraine,
having analysed the then current legislation, concluded, inter
alia, that State and municipal property were different types of
property.
- Article
78 “Municipal unitary enterprises” of the Commercial Code
of Ukraine (in force since 1 January 2004) provides that municipal
unitary enterprises are set up by the competent body of local
self-government and are managed by it. A municipal
unitary enterprise holds assets under the right of economic
management (for municipal commercial enterprises) or operative
management (for municipal non-commercial enterprises). A municipal
unitary enterprise is managed by the head of that enterprise
appointed by the body to which it is subordinate.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common factual
and legal background.
II. COMPLAINTS UNDER ARTICLES 6 § 1 AND 13
OF THE CONVENTION ABOUT LENGTHY NON-ENFORCEMENT OF THE JUDGMENTS IN
THE APPLICANTS' FAVOUR
- The
applicants complained about the State authorities' failure to enforce
the judgments taken in their favour in due time and the lack of
effective remedies in that respect. In this regard they relied on
Articles 6 § 1 and 13 of the Convention, which read 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.”
A. Admissibility
- Relying on the provisions of national legislation
(among others, the 1963 and 2003 Civil Codes and the 1997 Local
Self-Government Act), the Government submitted that they were not
responsible for the debts of the municipal companies. They further
submitted that the applicants had failed to exhaust domestic remedies
as required by Article 35 § 1 of the Convention.
In particular, they maintained that the applicants had not availed
themselves of the opportunity to be registered as creditors in
insolvency, if any, or liquidation proceedings pending against the
debtor companies, and had failed to challenge the liquidation
commission's inactivity before the relevant commercial court or to
apply to any domestic court against the Bailiffs' Service to
challenge the allegedly inadequate enforcement of the judgments in
their favour.
- The
Government further drew the Court's attention to the fact that
application no. 32910/06 was limited to the complaints by Mr Ovcharov
only and did not concern the alleged violations of the rights of his
wife, as she was not a party to the present proceedings.
- The
Court notes that the debtor enterprises in the applicants' cases were
owned and controlled by local authorities (see paragraphs 5, 13
and 14, respectively). According to the established case-law of the
Convention organs, agencies of local self-government are State
organisations in the sense that they are governed by public law and
exercise public functions vested in them by the Constitution and the
laws. The Court reiterates that under the international law the term
“State organisation” is not limited only to organs of the
central Government. In cases where State power is decentralised it
extends to any national authority which exercises public functions
(see, for example, Mikryukov v. Russia, no. 7363/04,
§ 21, 8 December 2005 with further references). It
follows that the actions and/or omissions of the local authorities
are attributed to the respondent State and for these reasons the
Court concludes that the latter is accountable for the debts of
municipal enterprises to the same extent as it
is accountable for the debts of State-owned enterprises. Accordingly,
the Court dismisses the Government's objection.
- As
regards the Government's objection that the applicants had failed to
exhaust domestic remedies, 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 these
objections must be rejected in the instant case for the same reasons.
- As
regards the Government's submission concerning application
no. 32910/06, the Court notes that the fact that there were two
beneficiaries under the judgment of 17 December 2003 (Mr Ovcharov and
his wife – see paragraph 5 above) does not affect the
applicant's right to have the judgment – in his part, at least
– enforced within a reasonable time.
- The
Court notes that these complaints 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.
They must therefore be declared admissible.
B. Merits
- In
their observations on the merits of the applicants' claims, the
Government contended that there had been no violation of Articles 6 §
1 or 13 of the Convention.
- The
applicants disagreed.
- The
Court notes that the judgments in the applicants' favour have
remained unenforced for more than five years.
- The
Court reiterates that it has already found violations of
Articles 6 § 1 and 13 of the Convention in cases
like the present applications (see, among other authorities,
Kucherenko v. Ukraine, no. 27347/02, § 27,
15 December 2005).
- Having
examined all the materials in its possession, 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 in the present applications in respect of
the lengthy non-enforcement of the judgments in the applicants'
favour and the lack of an effective remedy for their complaints in
that respect.
III. OTHER COMPLAINTS
- Mr
Ovcharov also complained under Articles 6 § 1 and 13 of the
Convention about the court's assessment of evidence and
interpretation of the law and challenged the outcome of his
proceedings against the State Bailiffs' Service.
- Mr
Khomich additionally complained under Article 8 of the Convention
that the lengthy non-enforcement of the judgment in his favour had
prevented him from receiving effective medical treatment and
consequently affected his state of health.
- Having
carefully considered the applicants' submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
- It
follows that this part of the applications must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
IV. 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
- Mr Ovcharov claimed compensation in respect of
pecuniary and non-pecuniary damage, but failed to specify the
amounts.
- Mr
Khomich claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested these claims as excessive and unsubstantiated.
- The
Court finds, at the outset, that the Government should pay the
applicants the respective judgment debts, where they remain
outstanding, by way of compensation in respect of pecuniary damage.
- The
Court further finds that the applicants must have suffered
non-pecuniary damage on account of the violations found. Ruling on an
equitable basis, it awards Mr Ovcharov EUR 1,600 and Mr Khomich
EUR 2,600 under this head.
B. Costs and expenses
- The
applicants 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
1. Decides to join
the applications;
- Declares the complaints under Articles 6 § 1
and 13 of the Convention in respect of the lengthy non-enforcement of
the judgments in the applicants' favour and the lack of effective
remedy in that respect admissible and the remainder of the
applications inadmissible;
- 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;
- Holds
(a) that the respondent State is to pay, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
(i) the
outstanding debts under the judgments given in the applicants'
favour;
(ii) EUR
1,600 (one thousand six hundred euros) to Mr Ovcharov and EUR 2,600
(two thousand six hundred euros) to Mr Khomich 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
to the applicants;
(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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 28 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
