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FIFTH
SECTION
CASE OF KARPENKO v. UKRAINE
(Application
no. 10559/03)
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 Karpenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 10 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10559/03) 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 Vasiliy
Ivanovich Karpenko (“the applicant”), on 20 March
2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z.Bortnovska, Mrs V.Lutkovska and Mr Y.Zaytsev.
- On
2 June 2004 the Court decided to communicate the complaints under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
concerning the non-enforcement of the judgment in the applicant’s
favour 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 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1950
and resides in the town of Novogrodovka, Donetsk region, Ukraine.
- In January 2002, the applicant
instituted proceedings in the Novogrodovskiy Town Court of Donetsk
Region against the Novogrodovskaya Mining Company No. 1/3 - a
State-owned enterprise - to recover salary arrears.
- On 28 February 2002 the
Novogrodovskiy Town Court found in favour of the applicant (Решение
Новогродовского
городского
суда Донецкой
области) and awarded
him UAH 2,655.70.
On 12 August 2002 the Court of Appeal of the Donetsk Region
upheld the judgment of the first instance court. On 4 January 2003
the Supreme Court of Ukraine rejected the applicant’s appeal in
cassation.
- On 16 September 2002 the
Novogrodovskiy Town Bailiffs’ Service (Отдел
Государственной
исполнительной
службы Новогродовского
городского
управления
юстиции) initiated the
enforcement proceedings.
- In March 2003, the applicant
instituted proceedings in the Novogrodovskiy Town Court of the
Donetsk Region against the Novogrodovskiy Town Bailiffs’
Service for failure to enforce the judgment of 28 February 2002 in
his favour. On 9 April 2003 the Town Court rejected the
applicant’s claim, finding that no fault had been committed by
the Bailiffs’ Service. The court stated that the
Bailiffs’ Service had acted properly in enforcing the judgment
of 28 February 2002. However, by a number of decisions of the
Commercial Court of the Donetsk Region, the Bailiffs’ Service
had been prohibited from selling the property of the Mining Company,
due to the bankruptcy proceedings which had been initiated against
the company. The court also stated that, according to the Law on the
Introduction of a Moratorium on the Forced Sale of Property, on 26
December 2001 a ban on the forced sale of assets belonging to
undertakings in which the State held at least 25% of the share
capital had been introduced. On 9 June 2003
the Court of Appeal of the Donetsk Region upheld the decision of the
first instance court. The applicant appealed against it in
cassation. The parties did not submit any
further information about these proceedings.
- In February 2003 the Novogrodovskaya Mining Company
was reorganised and became a structural subdivision of the
Selidovugol Mining Company. As the latter
thereby became the debtor, the enforcement proceedings were
transferred to the Selidovskiy Town Bailiffs’ Service (Отдел
Государственной
исполнительной
службы Селидовского
городского
управления
юстиции).
- In August 2004 the judgment in the applicant’s
favour was enforced in full.
- The applicant instituted
proceedings in the Selidovskiy Town Court of the Donetsk region
against the Selidovskiy Town Bailiffs’ Service claiming
compensation for material and moral damage inflicted to him by the
non-enforcement of the judgment in his favour. On 19 December 2004
the court decided on the case but the parties did not inform the
Court about the outcome of the proceedings. On 25 January 2005 the
court returned the applicant’s appeal against this decision as
it was not submitted in compliance with procedural formalities
prescribed by law. The applicant appealed against the decision of 25
January 2005.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. ADMISSIBILITY
A. Complaints under Articles 2 § 1 and 4 § 1
of the Convention
- The
applicant complained that the existing situation infringed his right
to life under Article 2 § 1 of the Convention, given his
low standard of living. The Court reiterates that, according to its
case-law, neither Article 2 nor any other provision of the Convention
can be interpreted as conferring on an individual a right to enjoy
any given standard of living (Wasilewski v. Poland
(dec.), no. 32734/96, 20 April 1999). Moreover, the applicant has not
shown that he suffers such destitution as to put his life at risk
(see Sokur v. Ukraine (dec.), no. 29439/02, 26 November
2002). It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- The
applicant next complained about a violation of Article 4 § 1 of
the Convention, referring to the fact that he was forced to work
without receiving remuneration. The Court notes that the applicant
performed his work voluntarily and his entitlement to payment has
never been denied. The dispute thus involves civil rights and
obligations, but does not disclose any element of slavery or forced
or compulsory labour within the meaning of this provision (see Sokur
v. Ukraine (dec.), cited above). In these circumstances, the
Court considers that this part of the application must be rejected as
being manifestly ill-founded pursuant to Article 35 §§ 3
and 4 of the Convention.
B. Complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1
- The
applicant complained about the length of the non-enforcement of the
judgment in his favour. He invoked Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1. These
Articles provide, 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. ...”
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 ....”
- The
Government raised objections regarding the applicant’s victim
status similar to those which the Court has already dismissed (see
Shmalko v. Ukraine, no. 60750/00, §§ 30-34, 20 July
2004). The Court considers that the present objections must be
rejected for the same reasons.
- The Court concludes that the applicant’s
complaint under Article 6 § 1 of the Convention
about the delay in the enforcement of the judgment of the
Novogrodovskiy Town Court 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. For the same
reasons, the applicant’s complaint under Article 1 of
Protocol No. 1 cannot be declared inadmissible.
II. MERITS
- The Government maintained that the judgment in the
applicant’s favour was enforced in full. They further
maintained that the responsibility of the State
in this situation was limited to the organisation and proper conduct
of enforcement proceedings and that the length of the
enforcement proceedings had been caused by the critical financial
situation of the debtor company and the energy sector of the
Ukrainian economy in general. The Government contended that the
Bailiffs’ Service performed all necessary actions and cannot be
blamed for the delay. The regularity of the enforcement proceedings
in the present case was confirmed by the domestic courts. The
Government argued that the State could not be considered responsible
for the debts of its enterprises and that the State annually
allocated substantial amounts from its budget to cover part of the
disability allowances and other compensatory payments to the workers
in the mining industry. The Government finally maintained that the
length of the enforcement was one year eleven months and fifteen days
which cannot be considered as unreasonable.
- The
applicant disagreed.
- The Court notes that the judgment in the applicant’s
favour was not enforced for nearly two years.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases like the present application (see, Sokur v. Ukraine,
cited above, §§ 30-37; Shmalko v. Ukraine,
cited above, §§ 55-57).
- 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 of
Article 1 of Protocol No. 1.
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
- The
applicant claimed EUR 6,191 in respect of pecuniary and non-pecuniary
damage.
- The
Government maintained that the applicant has not substantiated his
claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non-pecuniary damage, and awards him EUR 400 in this respect.
B. Costs and expenses
- The
applicant did not submit any claim under this head within the set
time-limit; 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 complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 admissible and the
remainder of the application inadmissible;
- 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 of the Convention;
- 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, EUR 400 (four
hundred euros) in respect of non-pecuniary damage;
(b) that the above amount 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 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 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
