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FIFTH
SECTION
CASE OF ZAICHENKO v. UKRAINE
(Application
no. 29875/02)
JUDGMENT
STRASBOURG
22
November
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 Zaichenko 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 M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29875/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Vladimir Georgiyevich
Zaichenko (“the applicant”), on 16 July 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev and the Deputy Minister of
Justice, Mrs V. Lutkovska.
- On
22 January 2007 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
length of the proceedings, the lack of remedies in this respect, and
the non enforcement of a final judgment to the Government.
Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Dnipropetrovsk.
- On
22 September 1998 criminal proceedings, instituted against the
applicant on suspicion of tax evasion, were discontinued on
exonerative grounds.
- In
December 1998 the applicant instituted proceedings in the
Krasnogvardiysky District Court of Dnipropetrovsk (“the
Krasnogvardiysky Court,” Красногвардійський
районний суд
м. Дніпропетровська),
seeking compensation from the State budget for moral damage
inflicted by the allegedly unlawful actions of the investigating
authorities.
- On
10 September 1999 the Krasnogvardiysky Court rejected the
applicant's claims as unsubstantiated. On 1 November 1999
the Dnipropetrovsk Regional Court (“the Regional Court,”
Дніпропетровський
обласний
суд)
quashed this judgment and remitted the case for a fresh
consideration.
- On
2 February 2000 the Krasnogvardiysky Court awarded the applicant
3,000 hryvnyas (UAH)
in moral damage without specifying the debtor. This judgment was
upheld by the Regional Court on 21 February 2000 and became
final. The applicant unsuccessfully attempted to obtain a supervisory
review of the two rulings, seeking a higher amount of compensation.
- On
16 March 2000 the Dnipropetrovsk Regional Treasury
(Управління
державного
казначейства
у Дніпропетровській
області)
transferred the judgment of 2 February 2000 to the
State Treasury (Державне
казначейство
України)
for enforcement. The State Treasury did not pay the debt and
requested the Prosecutors' Office to lodge a supervisory review
request (a protest) against the court rulings of 2 and
21 February 2000. On 14 September 2000 the Deputy
Regional Prosecutor (Заступник
прокурора
Дніпропетровської
області)
lodged a protest with the Regional Court alleging that
no compensation should have been awarded.
- On
18 October 2000 the Presidium of the Regional Court
dismissed the protest and upheld the previous two rulings. The
Deputy Prosecutor General lodged a protest with the Supreme Court
against all three court rulings.
- In
its final decision of 16 May 2001, the Supreme Court upheld
the rulings at issue and amended the judgment of 2 February 2000
to specify that the debt was to be paid by the Zhovtnevy District
Treasury of Dnipropetrovsk (“the
Zhovtnevy Treasury,” Відділення
Державного
казначейства
у Жовтневому
районі м. Дніпропетровська).
The applicant unsuccessfully attempted to lodge a cassation appeal
against this final decision, seeking a higher amount of compensation.
- On
12 July 2001 the Zhovtnevy District Bailiffs' Service (“the
Bailiffs,” Відділ
Державної
виконавчої
служби Жовтневого
районного
управління
юстиції в м.
Дніпропетровську)
initiated the enforcement proceedings in respect of the
amended judgment of 2 February 2000.
- On
5 October 2001 the Bailiffs imposed a fine on Ms G.,
the Head of the Zhovtnevy Treasury, for her failure to ensure the
enforcement of the judgment in due time. Ms G. appealed to the
Zhovtnevy District Court of Dnipropetrovsk (“the Zhovtnevy
Court,” Жовтневий
районний
суд
м. Дніпропетровська).
- On
11 December 2001 the Zhovtnevy Court allowed Ms G.'s
appeal, having found that the judgment had not been enforced on
account of a failure in the statutory mechanism and the lack of
budgetary allocations. The applicant's appeal against this judgment
was returned as “not lodged” in view of his failure to
rectify its procedural shortcomings.
- On
1 April 2002 the Bailiffs discontinued the enforcement
proceedings on the ground that the collection of the debt was not
possible. The applicant unsuccessfully attempted to institute
criminal investigation into the non-enforcement.
- The
judgment of 2 February 2000 remains unenforced to the
present day.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Volosyuk v.
Ukraine (no. 60712/00, §§ 20-24, 29 June
2006).
THE LAW
- The
applicant complained that the length of his compensation proceedings,
including their enforcement stage, had been incompatible with the
guarantees set forth in Article 6 § 1 of the
Convention and that he had no effective remedies in respect of this
complaint as required by Article 13 of the Convention.
Additionally, he complained that the failure of the authorities to
enforce the final judgment given in his favour breached his rights
under Article 1 of Protocol No. 1. The impugned
provisions read, in so far 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 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 ....”
I. ADMISSIBILITY
- The Government raised objections, contested by the
applicant, regarding exhaustion of domestic remedies in respect of
his complaint concerning the lengthy non-enforcement of the judgment
and the lack of effective remedies in this respect similar to those
which the Court has already dismissed in a number of other cases (see
e.g., Vasylyev v. Ukraine, no. 10232/02, §§ 29-33,
13 July 2006 and Lizanets v. Ukraine,
no. 6725/03, § 43, 31 May 2007). The Court
considers that these objections must be rejected for the same
reasons.
- The Court further observes that the applicant's
enforcement proceedings cannot be dissociated from his court action
(see, as a recent authority, Sika v. Slovakia,
no. 2132/02, §§ 23-26, 13 June 2006).
- The
Court considers that the applicant's complaints raise issues of fact
and law under the Convention and finds no ground for declaring them
inadmissible. The Court must therefore declare them admissible.
II. MERITS
A. The alleged violation of Article 6 § 1
of the Convention
- In
their observations on the merits of the above complaint, the
Government contended that there had been no violation of
Article 6 § 1.
- The
applicant disagreed.
- The
Court reiterates that the applicant initiated the “determination”
of his “civil rights” within the meaning of Article 6 § 1
of the Convention by instituting judicial proceedings in December
1998. These proceedings eventually led to the adoption of a court
judgment on 2 February 2000, which became final on
21 February 2000 and has remained in force ever since that
date, in spite that various parties attempted to have the proceedings
reopened and that on 16 May 2001 the Supreme Court
introduced editorial clarifications to the text of the judgment at
issue. Therefore, the length of proceedings in
their judicial phase did not exceed one year and two months.
- As
of the date, when the judgment in the applicant's favour became final
(21 February 2000), the State became liable to pay the
applicant the judgment award. Although at one point of time the
applicant instituted formal enforcement proceedings to facilitate the
debt collection, it has not been paid until the present date. The
period of debt recovery in the applicant's case has thus exceeded
seven and a half years.
- The
Court notes that the primary reason for the delay in the final
determination of the applicant's civil rights in the present case has
been caused by the non-enforcement of a final judgment given in his
favour. The Court has frequently found violations of Article 6 § 1
of the Convention in cases raising issues similar to the one in the
present case (see, e.g., Sika v. Slovakia, cited above,
§ 35, Vasylyev v. Ukraine, no. 10232/02, § 36,
13 July 2006 and Volosyuk v. Ukraine, cited
above, §§ 37-38).
- 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.
- Having
regard to its case-law on the subject, the Court considers that in
the instant case there has accordingly been a breach of Article 6 §
1.
B. Alleged violation of Article 13 of the
Convention
- The
Court concludes that the applicant did not have an effective domestic
remedy, as required by Article 13 of the Convention, whereby he could
have obtained a ruling upholding his right to have his claims finally
settled within a reasonable time, as set forth in Article 6 § 1
of the Convention (see e.g. Voytenko v. Ukraine,
no. 18966/02, §§ 46-48, 29 June 2004 and
Vasylyev v. Ukraine, cited above, § 41).
Accordingly, there has been a breach of this provision.
C. Alleged violation of
Article 1 of Protocol No. 1 to the Convention
- The
Court recalls its case-law that the impossibility for an applicant to
obtain the enforcement of a judgment in his or her favour constitutes
an interference with the right to the peaceful enjoyment of
possessions, as set out in the first sentence of the first paragraph
of Article 1 of Protocol No. 1 (see, among other
authorities, Burdov v. Russia, no. 59498/00, § 40,
ECHR 2002-III; Jasiūnienė v. Lithuania,
no. 41510/98, § 45, 6 March 2003 and Voytenko v.
Ukraine, no. 18966/02, §§ 53-55,
29 June 2004). The Court finds no ground to depart from its
case-law in the present case.
- There
has, accordingly, been a violation of Article 1 of
Protocol No. 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 14,495.56 euros (EUR) in respect of pecuniary
damage. This amount included the unsettled judgment debt divided by
the amount of the minimum monthly salary as of the date of the
judgment, multiplied by the amount of the minimum monthly salary as
of the date, on which the present claim was formulated, to which was
added statutory default interest, which, according to the applicant,
accrued on the outstanding debt due to him. Additionally, the
applicant claimed EUR 12,900 in respect of non-pecuniary damage.
- The
Government contested these claims as unsubstantiated.
- The
Court finds that the Government should pay the applicant the
outstanding judgment debt due to him by way of compensation for
pecuniary damage. Otherwise, it does not discern any causal link
between the violation found and the pecuniary damage alleged; it
therefore rejects the remainder of the applicant's claim. On the
other hand, the Court finds it reasonable to award the applicant
EUR 2,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 42 for postal and other expenses
incurred in connection with his Convention proceedings.
- The
Government left the matter to the Court's discretion.
- The
Court considers it reasonable to award the applicant the full amount
claimed.
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 remainder of the application
admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there has been a violation of
Article 1 of Protocol No. 1;
- 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 unsettled
debt under the judgment of 2 February 2000 as well as
EUR 2,042 (two thousand and forty two euros) in respect of
non-pecuniary damage and costs and expenses, 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 22 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
