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FIFTH
SECTION
CASE OF KULIKOV v. UKRAINE
(Application
no. 36367/04)
JUDGMENT
STRASBOURG
18 January
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 Kulikov 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 11 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36367/04) 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 Nikolay
Aleksandrovich Kulikov (“the applicant”), on 29
September 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
15 March 2005 the Court decided to communicate the complaints under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
concerning the lengthy 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1947
and resides in the town of Makeyivka, Donetsk region, Ukraine.
- On an unspecified date, the
applicant instituted proceedings in the Gornyatskyy District Court
against his former employer, the Makeyivvugillya State Mining Company
(ДП «Макеїввугілля»),
for salary arrears and other payments. On 24 July 2002 the court
awarded the applicant 30,713.88
Ukrainian hryvnias (“UAH”) (Рішення
Гірняцького
районного суду
м.Макеївки).
- On
an unspecified date, the Sovetskiy District Bailiffs' Service
initiated the enforcement proceedings. In November 2003 these
proceedings were transferred to the
Tsentralno-miskyy District Bailiffs' Service (Відділ
Державної
виконавчої
служби Центрально-міського
районного
управління
юстиції м. Макеївки).
- In
2002-2004 the applicant received UAH 8,948.10; according to him the
rest of the sum remains unpaid.
II. RELEVANT DOMESTIC LAW
8. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- Relying
on Article 13 of the Convention, and Article 1 of Protocol No. 1
the applicant complained about the lengthy
non-enforcement of the judgment given in his favour. These Articles
provide, insofar as relevant, as follows:
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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
Court finds that the applicant's complaint about the lengthy
non-enforcement of the judgment given in his favour also required
examination under Article 6 § 1 of the Convention which reads 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 objection regarding the exhaustion of domestic
remedies similar to that which the Court has already dismissed in the
case of Romashov v. Ukraine (cited above,
§§ 28-32). The Court considers that the present
objection must be rejected for the same reasons.
- The
Court concludes that the applicant's complaints under Articles 6 § 1
and 13 of the Convention about the delay in the enforcement of the
judgment of the Gornyatskyy District Court are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible. For the
same reasons, the applicant's complaint under Article 1 of
Protocol No. 1 cannot be declared inadmissible.
B. Merits
- The Government maintained that the judgment in the
applicant's favour was enforced in part. The Government argued that
the State could not be considered responsible for the debts of its
enterprises. The Government 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 not been
unreasonable and had been caused by the critical financial situation
of the debtor company. The Government contended that the Bailiffs'
Service had performed all necessary actions and could not be blamed
for the delay.
- The applicant failed to comment on the Government's
observations within the provided time-limit.
- The Court notes that the judgment in the applicant's
favour has not been enforced for more than four years and three
months.
- 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, among others,
Romashov v. Ukraine, cited above, §§ 42 46;
Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July
2004).
- Having examined all the materials 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.
- The Court does not consider it necessary in the
circumstances to rule on the same complaint under Article 13 of the
Convention.
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.”
Damage, costs and expenses
- In
the present case the applicant failed to submit any claims; the Court
therefore makes no award.
- The
Court, however, notes that it is undisputed that the State still has
an outstanding obligation to enforce the judgment at issue.
Accordingly, the applicant remains entitled to recover the principal
amount of the debt awarded to him in the course of the domestic
proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds that it is not necessary to rule on the applicant's
complaint under Article 13 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 of the Convention.
Done in English, and notified in writing on 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
