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FIFTH
SECTION
CASE OF MAVRODIY v. UKRAINE
(Application
no. 32558/04)
JUDGMENT
STRASBOURG
7 June
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 Mavrodiy 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 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32558/04) 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 Grigoriy Yakovlevich
Mavrodiy (“the applicant”), on 31 August 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
15 May 2006 the Court decided to communicate the complaint under
Article 6 § 1 of the Convention concerning the non-enforcement
of the judgments in the applicants' 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Grigoriy Yakovlevich Mavrodiy, is a Ukrainian national
who was born in 1931 and lives in Mykolayiv. He was the only owner
and director of the “Primula” private construction
enterprise.
- On
24 June 1998 the Odessa Regional Arbitration Court ordered the
Chornomorskyi Housing Unit of the Odessa Military District
(Квартирно-експлуатаційна
частина Чорноморського
району Одеського
військового
округу) to pay the
applicant's enterprise UAH 21,350
under a construction contract. The judgment
became final and the writ of execution was transferred to the
Bailiffs' Service for enforcement. However, it was not
enforced due to lack of funds on the debtor's current account.
- On
26 December 2001 the Odessa Regional Commercial Court, upon the
applicant's request, ordered the enforcement of the judgment of
24 June 1998 by attaching the debtor's property.
- On
14 November 2002 the writ of execution was
returned to the applicant as the enforcement proceedings were
terminated due to the debtor's lack of funds.
- On
23 December 2003 the Odessa Regional Commercial Court rejected the
applicant's request to declare the Ministry of Defence a debtor in
the enforcement proceedings. On 18 February 2004 the Odessa
Commercial Court of Appeal upheld this ruling.
- In
March 2004 the applicant lodged with the Kyiv City Commercial Court a
claim against the Ministry of Defence and the Chornomorskyi Housing
Unit seeking compensation for pecuniary and non-pecuniary damage
caused by the failure to enforce the judgment of 24 June 1998. On
20 May 2004 the applicant's claim was left without consideration
for failure to pay the court fee.
- The
judgment given in the applicant's favour by the Odessa Regional
Arbitration Court on 24 June 1998 remains
unenforced.
II. RELEVANT DOMESTIC LAW
-
The relevant domestic law is summarised in the
judgments of Voytenko v. Ukraine (no. 18966/02,
29 June 2004) and Romashov v. Ukraine (no.
67534/01, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the State authorities' failure to enforce
the judgment of 24 June 1998 in due time. He invoked Article 6 § 1
of the Convention, 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. ...”
A. Admissibility
- The
Government raised objections, contested by the applicant, regarding
exhaustion of domestic remedies similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement against
the State institutions (see Voytenko v. Ukraine, cited above,
§§ 27 31 and Romashov v. Ukraine, cited
above, §§ 28-32). The Court considers that these
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 judgments of the Odessa Regional
Arbitration Court 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 this complaint inadmissible. The Court
must therefore declare it admissible.
B. Merits
- In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in the applicant's
respect.
- The
applicants disagreed.
- The
Court notes that the judgment in the applicant's favour remains
unenforced for more than eight years and ten months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Sokur v. Ukraine, cited above, §§ 36-37
and Sharenok v. Ukraine, no. 35087/02, §§ 37-38,
22 February 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.
II. OTHER COMPLAINTS
- The applicant complained under Article 3 of the
Convention that the failure to enforce the judgment given in his
favour caused deterioration of his health and bankruptcy of his
company. He also complained under Article 6 § 1 of the
Convention of an unfair hearing and the outcome of the proceedings
instituted by him in 2003-2004.
- However,
in the light of all the materials in its possession, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 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 in respect of pecuniary damage
UAH 70,000
(the judgment debt plus indexation and interest rate) and UAH 50,000
as compensation for non-pecuniary damage.
- The
Government maintained the applicant's claims were exorbitant and
unsubstantiated.
- In
so far as the applicant claimed the amount awarded to him by the
judgment at issue, the Court considers that the Government should pay
him the outstanding debt (see paragraph 5 above) in settlement of his
pecuniary damage. As to the remainder of the applicant's just
satisfaction claims, the Court, making its assessment on an equitable
basis, as required by Article 41 of the Convention, awards the
applicant EUR 2,600 (two thousand and six hundred euros) in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any separate 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 as to non-enforcement of the judgment given in the
applicant's favour admissible and the remainder of his complaints
inadmissible;
- 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, the judgment's
debt still owed to him as well as EUR 2,600 (two thousand and six
hundred euros) in respect of 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 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 7 June 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
