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FIFTH
SECTION
CASE OF ANDRUSENKO AND OTHERS v. UKRAINE
(Application
no. 41073/02)
JUDGMENT
STRASBOURG
10
August 2006
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 Andrusenko and Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R.
Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
judges,
Mrs S. Botoucharova,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 3 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41073/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by 6 Ukrainian nationals: Mr Leonid Ivanovych
Andrusenko, Mr Valeriy Volodymyrovych Bondarenko, Mr Ivan Petrovych
Mysnianko, Mr Oleksandr Mykolayovych Goryachykh, Mr Volodymyr
Grygorovych Leontyev and Mr Ivan Yegorovich Migunov (“the
applicants”) on 16 October 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z.Bortnovska and Mr Y. Zaytsev.
- On
24 October 2003 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.
- On
1 April 2006 the Court changed the composition of its Sections (Rule
25 § 1). This case was assigned to the newly constituted Fifth
Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. Mr
Leonid Ivanovych Andrusenko was born in 1953 and currently resides in
the village of Konstiantynivka, Donetsk region, Ukraine. Mr Valeriy
Volodymyrovych Bondarenko was born in 1956 and currently resides in
the town of Krasnogorivka, Donetsk region, Ukraine. Mr Ivan Petrovych
Mysnianko was born in 1961 and currently resides in the town of
Vugledar, Donetsk region, Ukraine. Mr Oleksandr Mykolayovych
Goryachykh was born in 1958 and currently resides in the town of
Vugledar, Donetsk region, Ukraine. Mr Volodymyr Grygorovych Leontyev
was born in 1940 and currently resides in the town of Vugledar,
Donetsk region, Ukraine. Mr Ivan Yegorovich Migunov was born in 1956
and currently resides in the town of Vugledar, Donetsk region,
Ukraine.
- In
1997 Mr Andrusenko was dismissed from the “Pivdennodonbasska”
State-owned mine No.3 (the “PDM No.3”). In February 1998
he instituted proceedings in the Vugledar Town Court claiming to
reinstate him in his position. On 10 September 1998 the court
rejected his claims. On 19 October 1998 the Donetsk Regional Court
quashed this decision and remitted the case for a fresh
consideration. On 28 December 1998 the Vugledar Town Court
reinstated Mr Andrusenko in his position and ordered the PDM No.3 to
pay him compensation in salary arrears. On 22 February 1999 the
Donetsk Regional Court quashed this decision and remitted the case
for a fresh consideration. The case was remitted to Petrovsky
District Court of Donetsk for examination on the merits, on the basis
of Mr Andrusenko’s request to change the jurisdiction. On 12
July 2000 the Petrovsky District Court found in part for Mr
Andrusenko. On 28 September 2000 the Donetsk Regional Court quashed
this decision and remitted the case for a fresh consideration. Mr
Andrusenko lodged a petition with the Donetsk Regional Court seeking
consideration of the merits of his claims, without remitting the case
for fresh consideration. On 5 December 2000 the Donetsk Regional
Court found in part for Mr Andrusenko and awarded him UAH 17,699.68
against the PDM No.3 in salary arrears and other payments. On 28
February 2001 the Supreme Court of Ukraine upheld this judgment. By a
letter of 15 December 2004 Mr Andrusenko informed the Court that
the judgment in his favour was enforced in June 2004.
- On
13 November 2001 the Maryinsky District Court ordered the PDN No.3 to
provide Mr Andrusenko with 24 tonnes of coal. It also ordered the PDN
No.3 to pay Mr Andrusenko UAH 607.72
in compensation. By a letter of 15 December 2004 Mr Andrusenko
informed the Court that the pecuniary part of the judgment was
enforced by January 2003. However, 24 tonnes of coal awarded in the
judgment of 13 November 2001 have been never provided to him.
- On
18 January 2002 the Maryinsky District Court ordered the PDN No.3 to
pay Mr Andrusenko UAH 244.39
in compensation for salary arrears and moral damage. By another
judgment delivered on the same date Mr Andrusenko also received UAH
56
in salary arrears. By a letter of 15 December 2004 Mr Andrusenko
informed the Court that the judgments were enforced by January 2003.
- On
29 October 1999 and 15 November 2000 the Maryinsky District Court of
the Donetsk Region awarded Mr Bondarenko UAH 8,542.85
and UAH 3,785.74,
respectively, against his employer, the State-owned Krasnogorivsky
Vognetryvnyj Zavod factory (the “KVZ”), in salary
arrears. On 8 June 2000 the Commercial Court of the Donetsk Region
initiated a reorganisation procedure (процедура
санації) for the
KVZ factory and the enforcement of the judgments was suspended. On 29
May 2003 Mr Bondarenko withdrew the writs of enforcement and the
enforcement proceedings were closed. The judgments in his favour
remain unenforced.
- On
17 and 22 December 1998, and on 10 April 2001 the Vugledar Town Court
awarded Mr Musnianko UAH 27,457,
UAH 1,605
and UAH 20,974.69,
respectively, against his employer, PDM No.3, in compensation for a
work-related illness and in salary arrears. By a letter of 20
December 2004 Mr Musnianko informed the Court that the judgments in
his favour were enforced by instalments, the final amounts being paid
in August and December 2002, and in May 2004, respectively.
- On
29 September 2000 the Vugledar Town Court awarded Mr Goryachykh
a lump sum of UAH 29,352.24
and monthly payments of UAH 420.94
until 13 September 2001 against his former employer, the PDM No.3, in
compensation for an industrial injury. By a letter of 20 December
2004 Mr Goryachykh informed the Court that the judgment in his favour
was enforced in May 2004.
- On
2 November 1998 the Vugledar Town Court awarded Mr Leontyev UAH
38,620.60
against his former employer, the “Pivdennodonbasska”
State-owned mine No.1 (“PDM No.1”), in compensation for
an industrial injury. On 25 January 1999 the Vugledar Town Court
awarded Mr Leontyev UAH 2,140
against the PDM No.1 in compensation for moral damage. On 30 August
1999 the Vugledar Town Court awarded him UAH 6,864.20
in compensation for an industrial injury. It also awarded Mr Leontyev
UAH 1,575
as a single-payment retirement benefit. By a letter of 20 December
2004 Mr Leontyev informed the Court that the judgments in his favour
were enforced by April-June 2001 and by January 2003, respectively.
- On
3 December 1998 the Vugledar Town Court awarded Mr Migunov UAH
33,625.42
against the PDM No.1 in compensation for an industrial injury. On 5
December 2000 the Vugledar Town Court awarded him UAH 2,269.80
against the PDM No.1 in additional compensation for the delay in
payment. On 15 November 2002 the Vugledar Town Court awarded Mr
Migunov UAH 25,706.26
against the PDM No.1 in compensation for the delayed payment of
salary. By a letter of 25 December 2004 Mr Migunov informed the Court
that the judgments in his favour were enforced by February - May
2004.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-19, 29 June 2004).
THE LAW
I. ADMISSIBILITY
A. Non-enforcement of judgments
- The
applicants complained about the State authorities’ failure to
enforce the court judgments in their favour in due time. The
applicants invoked Articles 6 § 1, which
provides, 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. ...”
- The
Government raised objections regarding the applicants’ victim
status and exhaustion of domestic remedies similar to those which the
Court has already dismissed in the case of Romashov v. Ukraine
(cited above, §§ 23-33). The Court considers that
the present objections must be rejected for the same reasons.
1. Non-enforcement of the judgments of 18 January 2002
in Mr Andrusenko’s favour
- The
Court notes that the period of enforcement of the judgments of 18
January 2002 (see paragraph 8) in Mr Andrusenko’s favour lasted
around one year. The Court further notes that this period is not so
excessive as to raise an arguable claim under the Convention.
Furthermore, it is observed that the judgments’ debts did not
concern the applicant’s basic subsistence and there were no
other special, urgent circumstances that would lead to the conclusion
that the delays in the enforcement of the judgments were
unreasonable. It follows that this complaint is manifestly
ill-founded within the meaning of Article 35 § 3, and must be
rejected pursuant to Article 35 § 4 of the
Convention.
2. Non-enforcement of other judgments
- The
Court concludes that the rest of the applicants’ complaints
under Article 6 § 1 of the Convention about the
delay in the enforcement of the judgments in their favour raises
serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It
finds no ground for declaring these complaints inadmissible.
B. Other complaints
- Mr
Andrusenko complained under Article 6 § 1 of the Convention,
cited above, of an unfair hearing and the lengthy consideration of
his labour dispute concerning his dismissal (see paragraph 6 above).
- The
Court notes that it is not called upon to
examine alleged errors of facts and law committed by the domestic
judicial authorities, insofar as no unfairness of the proceedings can
be detected and the decisions reached cannot be considered arbitrary.
Within the framework of the proceedings, the applicant was able to
put forward all necessary arguments in defence of his interests, and
the judicial authorities gave them due consideration. The Court
further notes that the court proceedings in Mr Andrusenko’s
labour case lasted for three years and in the circumstances of the
present case such length did not exceed the "reasonable
time" requirement referred to in Article 6 § 1 of the
Convention. In particular, there is no discernible period of
inactivity which can be attributed to the domestic courts. It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
II. MERITS
- In
their observations, the Government contended that there had been no
violation of Article 6 § 1 of the Convention (as
in the case of Romashov, cited above, § 37). The
Government maintained that the length of the enforcement proceedings
in the applicants’ cases was reasonable and, moreover, had been
caused by the critical financial situation of the debtor companies
and the Ukrainian economy in general. The Government further
maintained that the Bailiffs’ Service performed all necessary
actions and cannot be blamed for the delay. They finally stated that
as on 29 May 2003 Mr Bondarenko withdrew his writs of enforcement,
the Government were not responsible for the non-enforcement of the
judgments after this date.
- The
applicants disagreed.
- The
Court notes that the judgments in the applicants’ favour have
remained unenforced for a considerable period of time.
Notably, the period of debt recovery in the applicants’
cases has lasted between two and more than five years.
- The
Court further considers that, notwithstanding the fact that on 29 May
2003 Mr Bondarenko withdrew the writs of enforcement, by failing for
three years and seven months, and for more than two years and six
months to take the necessary measures to comply with the judgments of
29 October 1999 and 15 November 2000, the authorities deprived
the provisions of Article 6 § 1 of the Convention
of all useful effect. It further considers that the Government have
not advanced any convincing justification for these delays.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in cases raising issues similar to the present
application (see, for instance, Romashov, cited above,
§§ 39-46).
- 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.
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
28. All
of the applicants claimed UAH 30,000 (approximately EUR 5,000)
in respect of non-pecuniary damage, except for Mr Andrusenko,
who claimed UAH 40,000 (approximately EUR 7,000).
- The
Government maintained that the applicants had not substantiated their
claims.
30. The
Court considers that the Government should enforce the non-pecuniary
part of the judgment of 13 November 2001 in favour of Mr Andrusenko
and to pay Mr Bondarenko the outstanding debt awarded to him by the
national court.
- The
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards on the basis of the length
of the periods of non-enforcement in each case:
- Mr
Leonid Andrusenko - EUR 1,800;
- Mr
Valeriy Bondarenko - EUR 1,300;
- Mr
Ivan Mysnianko - EUR 1,600;
- Mr
Oleksandr Goryachykh – EUR 1,300;
- Mr
Volodymyr Leontyev – EUR 1,300 and
- Mr
Ivan Migunov – EUR 1,800.
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
- Declares the complaint under Article 6 § 1
of the Convention concerning the lengthy non-enforcement of the court
judgments of 18 January 2002 in Mr Andrusenko’s favour
inadmissible;
2. Declares the rest of complaints under Article 6
§ 1 of the Convention concerning the lengthy non-enforcement of
the court judgments in the applicants’ favour admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to enforce the remaining non-pecuniary part
of judgment of 13 November 2001 in favour of Mr Leonid Andrusenko and
to pay the applicants, within three months from
the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, as follows:
- to
Mr Leonid Andrusenko, EUR 1,800 (one thousand eight hundred euros)
for non-pecuniary damage;
- to
Mr Valeriy Bondarenko, the judgments debt still owed to him, as well
as EUR 1,300 (one thousand three hundred euros) for non-pecuniary
damage;
- to
Mr Ivan Mysnianko, EUR 1,600 (one thousand six hundred euros) for
non-pecuniary damage;
- to
Mr Oleksandr Goryachykh, EUR 1,300 (one thousand three hundred euros)
for non-pecuniary damage;
- to
Mr Volodymyr Leontyev, EUR 1,300 (one thousand three hundred euros)
for non-pecuniary damage;
- to
Mr Ivan Migunov, EUR 1,800 (one thousand eight hundred euros) for
non-pecuniary damage.
(b) that the above amounts shall 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;
(c) 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 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
