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FIFTH
SECTION
CASE OF CHECHA v. UKRAINE
(Application
no. 5326/04)
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 Checha 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. 5326/04) 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 Pavel Petrovich Checha
(“the applicant”), on 9 January 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeriya Lutkovska.
- On
15 March 2005 the Court decided to communicate 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 1964 and lives in the city of Dniprodzerzhynsk.
- On
29 January 2003 the Pavlograd Court awarded the applicant
UAH 19,381.50
in industrial disease benefits arrears against the State-owned mining
company “Geroyiv Kosmosu”, which on 3 March 2003 was
joined to the State-owned Holding Company “Pavlogradvugillya”.
- On
2 April 2003 the Pavlograd Bailiffs' Service (hereinafter “the
Bailiffs”) instituted the enforcement proceedings.
- On
29 April 2004 the Pavlograd Court assigned the “Pavlogradvugillya”
as the debtor in the enforcement proceedings.
- On
23 September 2004 the Pavlograd City Court rejected the applicant's
complaint against the Bailiffs. The court indicated, inter alia,
that the award could not be paid due to the debtor's lack of funds.
The scope of action for the Bailiffs was also limited by the funds
allocated from the State Budget to the Ministry of Fuel and Energy
for payment of the industrial benefits.
- On
25 October 2004 the debtor company was privatised.
- On
27 December 2004 the judgment debt was paid to the applicant and the
Bailiffs terminated the enforcement proceedings.
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. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention and Article 1 of Protocol No. 1 about the lengthy
non-enforcement of the judgment given in his favour. The above
provisions read, 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 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 ....”
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-owned companies (see e.g. Sokur v Ukraine (dec.),
no. 29439/02, 16 December 2003 and Trykhlib v.
Ukraine, no. 58312/00, §§ 39-43, 20 September
2005). The Court considers that these objections must be rejected for
the same reasons.
- The Court notes that the application 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.
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 as the judgment given in his favour had been enforced in
full.
- The
applicant disagreed.
- The
Court notes that the judgment given in the applicant's favour
remained unenforced for almost twenty-three months.
- The Court recalls that it has already found violation
of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in a number of similar cases (see, for
instance, Mykhaylenky and Others v. Ukraine, nos. 35091/02,
35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02,
38296/02 and 42814/02, § 45, ECHR 2004 and Dubenko v.
Ukraine, no. 74221/01, § 51, 11 January 2005).
- Having
examined all the materials 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 and Article 1 of Protocol No. 1.
- The
Court does not find it necessary in the circumstances to examine the
same complaint under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
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.”
A. Damage
- The
applicant claimed UAH 5,825 (EUR 896) of inflation and interest rate
and EUR 1,000 in compensation of non-pecuniary damage.
- The
Government maintained that the State was not liable for the lengthy
non-enforcement of the judgment in the applicant's favour and that
the applicant should have claimed compensation for inflation and
interest rate at the domestic level. The Government agreed to pay the
applicant EUR 1,000 by way of compensation for non-pecuniary
damage in the event of the Court's finding a violation.
- As
regards the applicant's claims for interest on monies unpaid and for
compensation for losses due to inflation, the Court notes that these
claims are not supported by any relevant material which would enable
the Court to determine the amounts claimed. Consequently, it rejects
these claims (see e.g., Glova and Bregin v. Ukraine, nos.
4292/04 and 4347/04, § 29, 28 February 2006).
- As
to the remainder of the applicant's just satisfaction claim, the
Court, having regard to the Government's comments on the point,
awards the applicant EUR 1,000 (one thousand euros) in respect of
non-pecuniary damage.
B. Costs and expenses
- The applicants 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 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
1 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine the
complaint under Article 13 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 1,000 (one
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 22 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
