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FIFTH
SECTION
CASE OF KACHANOV v. UKRAINE
(Application
no. 9062/04)
JUDGMENT
STRASBOURG
13
December 2007
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 Kachanov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9062/04) 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 Igor Petrovich Kachanov on 13 February 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
30 May 2006 the Court decided to give notice of 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
- The
applicant was born in 1960 and lives in Shakhtаrsk,
the Donetsk region.
- On
20 October 2000 the Shakhtаrsk
City Court (Шахтарський
міський суд
Донецької
області)
awarded the applicant 4,815.28 hryvnyas (UAH)
in salary arrears and compensations from his former employer, the
Municipal Communal Service Department (“the Company,”
Шахтарське
міське госпрозрахункове
управління
комунального
господарства).
- This
judgment was not appealed against, became final and the enforcement
proceedings were instituted to collect the judgment debt.
- On
7 April 2003 the Company was declared bankrupt and
subsequently liquidated.
- The
applicant unsuccessfully attempted to seek compensation from the
Bailiffs for their failure to enforce the judgment.
- The
judgment remains unenforced to the present date.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the judgment of 27 July
2004 in the case of Romashov
v. Ukraine
(no. 67534/01, §§
16-19).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgment given in his favour. He invoked Article 6 § 1
of the Convention, which provides, insofar as relevant, as follows:
“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. ...”
I. ADMISSIBILITY
- The Government raised objections regarding exhaustion
of domestic remedies similar to those which the Court has already
dismissed in other cases (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 for the same reasons.
- The Court concludes that the applicant's complaint
raises issues of fact and law under the Convention, the determination
of which requires an examination on the merits. It finds no ground
for declaring it inadmissible. The Court must therefore declare it
admissible.
II. MERITS
- In
their observations on the merits of the applicant's complaint, the
Government contended that there had been no violation of
Article 6 § 1 of the Convention.
- The
applicant disagreed.
- The
Court notes that the judgment given in the applicant's favour has
remained unenforced for the period exceeding seven years.
- The
Court has frequently found violations of Article 6 § 1
of the Convention in cases raising similar issues, where a debtor was
a public enterprise (see e.g., Kucherenko v. Ukraine,
no. 27347/02, §§ 26-27, 15 December 2005).
- 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.
- 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
- The
applicant claimed the unsettled judgment debt and UAH 2,249.54
(EUR 368) in inflation losses by way of compensation for
pecuniary damage. In addition, he claimed EUR 250,000 in respect
of non pecuniary damage.
- The
Government contested the claims in respect of inflation losses and
non-pecuniary damage. They did not comment on the applicant's claim
for the unsettled debt.
- The
Court finds that the Government should pay the applicant the
unsettled judgment debt by way of compensation for pecuniary damage.
As regards the applicant's claim for inflation losses, the Court
notes that the applicant's relevant calculations are not supported by
any official documents, which would enable the Court to determine the
amount. Consequently, it rejects this part of the claim (see e.g.,
Glova and Bregin v. Ukraine, nos. 4292/04 and 4347/04,
§ 29, 28 February 2006).
- The
Court further finds that the applicant must have suffered
non pecuniary damage. Ruling on an equitable basis, it awards
the applicant EUR 2,000 under this head.
B. Costs and expenses
- The applicant 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
(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,
(i) the
unsettled judgment debt still owed to him;
(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 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 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
