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FIFTH
SECTION
CASE OF
BILOKIN AND OTHERS v. UKRAINE
(Application
no. 14298/06)
JUDGMENT
STRASBOURG
18
June 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 Bilokin and Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Stanislav
Shevchuk, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 26 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14298/06) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by six Ukrainian nationals, Ms Yefrosyniya
Semenivna Bilokin, Ms Olena Oleksandrivna
Shebitko, Mr Anatoliy Ivanovich Shebitko, Mr Petro Ivanovich
Shebitko, Mr Sergiy Ivanovich Maksymenko and Ms Nataliya Dmytrivna
Maksymenko, on 17 March 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
29 April 2008 the Court decided to communicate 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
-
Ms Yefrosyniya Semenivna Bilokin was born in 1925, Ms Olena
Oleksandrivna Shebitko in 1972, Mr Anatoliy Ivanovych Shebitko in
1973, Mr Petro Ivanovych Shebitko in 1967, Mr Sergiy Ivanovych
Maksymenko in 1965 and Ms Nataliya Dmytrivna Maksymenko in 1963. All
the applicants live in Sudiyivka, Poltava Region.
A. Proceedings against the Collective Farming
Enterprise im. Illicha
- On
26 July 2001 the Poltava Town Court (“the Town Court”)
allowed the applicants’ claim against the collective enterprise
and ordered the latter to return to all of them certain agricultural
equipment worth 13,382 Ukrainian hryvnyas (UAH).
It also awarded them UAH 180
in compensation for legal expenses.
- On
17 October 2001 the Town Court changed the manner of enforcement of
the judgment at the applicants’ request and ordered the debtor
to pay them UAH 13,382 instead of providing them with the
equipment corresponding to that amount. To secure the claim the court
decided to seize the equipment at issue.
- On
9 November 2001 enforcement proceedings were instituted.
- In
April 2002 the Bailiffs’ Service seized the debtor’s
equipment.
- On
an unspecified date the judgment was enforced in part, an amount of
UAH 2,000
being paid to the applicants (each of them received UAH 333).
- No further
steps seem to have been taken for the enforcement of the judgment.
B. Proceedings against the State Bailiffs’
Service
- The
applicants complained to the Town Court that the Bailiffs’
Service was taking no action.
- On
21 November 2002 the Town Court found their complaint substantiated
and ordered the Bailiffs’ Service to speed up the sale of the
seized property.
- In
2004 the applicants introduced a claim for damages against the
Bailiffs’ Service at the Zhovtnevyy District Court, Poltava
(“the District Court”).
- On
5 August 2004 the District Court found for
the applicants and ordered the Bailiffs’ Service to pay them
jointly UAH 11,562
as the remaining amount of the award made by the 26 July 2001
judgment, and UAH 1,000
each in compensation for non-pecuniary damage. The judgment was not
appealed against and became final. It remains unenforced for lack of
funds.
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 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained of the lengthy non-enforcement of the judgments
of 26 July 2001 and 5 August 2004. They relied on
Article 13 of the Convention and Article 1 of
Protocol No. 1.
- The
Court finds it appropriate to examine the applicants’ complaint
under Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1, which 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 ...”
A. Admissibility
1. The applicant’s victim status concerning the
non-enforcement of the judgment of 26 July 2001
- The
Government raised objections regarding the applicants’ victim
status submitting, in particular, that the applicants had lost any
grounds to claim to be victims of the alleged violation in respect of
the non-enforcement of the 26 July 2001 judgment on 5
August 2004, when the District Court had not only recognised the
violation but also awarded each of them UAH 1,000
in compensation for non-pecuniary damage in this respect.
- The
Court reiterates its case-law on the matter, according to which the
applicant is considered to lose victim status if the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention. The issue as
to whether a person may still claim to be a victim of an alleged
violation of the Convention essentially entails on the part of the
Court an ex post facto examination of his or her situation. As
it has already held in the length-of-proceedings cases, the question
whether he or she has received reparation for the damage caused –
comparable to just satisfaction as provided for under Article 41 of
the Convention – is an important issue (see, among other
authorities, Cocchiarella v. Italy [GC],
no. 64886/01, §§ 71-72, ECHR 2006 V).
- Turning
to the present case, the Court notes that the domestic authorities
indeed acknowledged the authorities’ failure to ensure the
enforcement of the judgment in question and awarded the applicants
UAH 1,000 (about EUR 160) each in compensation for
non-pecuniary damage. The Court considers that the redress was
insufficient in the circumstances and, in any event, has never been
paid to the applicants. They, therefore, can still claim to be
“victims” of the lengthy non-enforcement of the
26 July 2001 judgment in their favour.
- The
Government’s objection must therefore be dismissed.
2. Non-exhaustion of domestic remedies concerning the
non-enforcement of the judgment of 5 August 2004
- The Government raised objections regarding the
exhaustion of domestic remedies similar to those which the Court has
already dismissed in a number of cases (see, for example, Sokur v.
Ukraine (dec.), no. 29439/02, 16 December 2003).
- The
Court sees no reasons to depart from its case-law in the instant case
and dismisses also this objection of the Government.
- The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of
the Convention and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
- The
Court notes that the final judgment of the Poltava Town Court dated
26 July 2001 was partially enforced
in April 2002, when each of the applicants received UAH
333, that being equal to about 15 per cent of the
outstanding debt. The judgment, in so far as the remainder of the
award is concerned, has remained unenforced for about seven years and
six months, with the Bailiffs’ Service recognized, by the
judgment of 5 August 2004, responsible for the delay.
Furthermore, the last-mentioned judgment itself, in the part
concerning the compensation to the applicants for the non-pecuniary
damage caused to them by the lengthy non-enforcement of the
26 July 2001
judgment, has remained unenforced for four years and six months.
- The
Court reiterates that it has already found violations of
Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in a substantial number of cases raising
issues similar to the present application (see, for example, Romashov
v. Ukraine, cited above, §§ 45-46). The Court finds no
ground to depart from its case-law in the present case.
- Having
examined all the material 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.
- Accordingly,
it finds that there has 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
- Each
of the applicants claimed EUR 6,500 in respect of pecuniary damage
and EUR 5,500 in compensation for non-pecuniary damage.
- The
Government contested these claims.
- The
Court makes its assessment on an equitable basis as required by
Article 41 of the Convention and considers that the Government
should pay the applicants the outstanding debt under the
judgment of 5 August 2004 in settlement of their pecuniary damage. It
also awards EUR 1,100 to each of them in respect of
non-pecuniary damage.
B. Costs and expenses
- The applicants did not submit any separate claim under
this head; the Court therefore makes no award in this respect.
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 to the Convention;
- Holds that there is no need to examine
separately the applicants’ complaint under Article 13 of
the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the debt still
owed to them under the judgment of 5 August 2004 as well as EUR 1,100
(one thousand one hundred euros) to each of them 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 18 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
