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FIFTH
SECTION
CASE OF KORABELNIKOV v. UKRAINE
(Application
no. 29860/05)
JUDGMENT
STRASBOURG
19 November 2009
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 Korabelnikov v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Stephen Phillips, Deputy Section
Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29860/05) 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 Yevgen Illich
Korabelnikov (“the applicant”), on 30 July 2005.
- The
applicant was represented by Mr V.P. Mokhnenko, a lawyer practising
in Ukraine. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev.
- On
20 May 2008 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1935 and lives in the town of Chasiv-Yar,
Ukraine.
- By
judgments of 14 September 2000 and 14 May 2002 the Artemovsk Court
awarded the applicant 2,736.90
Ukrainian hryvnias (UAH) and UAH 1,895.64
in disability allowance arrears and other payments, to be paid by the
applicant’s former employer, the State company Chasiv Yarskoye
spechupravleniye po remontu oborudovaniya, zdaniy i sooruzheniy.
- On
3 December 2003 the Donetsk Regional Commercial Court declared the
company insolvent. Following this event, liquidation proceedings were
instituted.
- The
applicant received UAH 525.72 in partial payment of the judgment
debts. The judgments remain unenforced.
II. RELEVANT DOMESTIC LAW
8. The relevant domestic law is
summarised in the judgment of Romashov
v. Ukraine
(no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 about the non-enforcement
of the judgments given in his favour. The above provisions provide,
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 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.....”
A. Admissibility
- The Government submitted that the applicant had failed
to exhaust domestic remedies as required by Article 35 § 1
of the Convention. In particular, they maintained that he had not
availed himself of the opportunity to be registered as a creditor in
the insolvency proceedings and had failed to apply to any domestic
court against the Bailiffs’ Service challenging the allegedly
inadequate enforcement of the judgment.
- The
applicant made no comments.
- The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (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 this objection must be rejected in the instant case
for the same reasons.
- The
Court notes that the complaints 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.
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. They further maintained that the State authorities had taken
all necessary measures to enforce the judgments in question.
- The
applicant made no comments.
- The
Court observes that the judgments given in the applicant’s
favour remain unenforced.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention in cases
raising similar issues to the ones in the present case (see Romashov,
cited above, § 46, and Voytenko v. Ukraine, no. 18966/02, §§
43 and 55).
- 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 and Article 1 of Protocol No.1 to the Convention.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF THE CONVENTION
- The
applicant finally invoked Article 1 of the Convention referring to
the same facts.
- The
Court has found the respondent Government to be in breach of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 to
the Convention and does not consider it necessary to examine the
complaint under Article 1, which is a framework provision that
cannot be breached on its own (see Ireland v. the United Kingdom,
18 January 1978, § 238, Series A no. 25, p. 90).
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, costs and expenses
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
- The
Court, however, notes that it is undisputed that the State still has
an outstanding obligation to enforce the judgments at issue.
Accordingly, the applicant remains entitled to recover the principal
amount of the debts awarded to him in the course of the domestic
proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaints under
Article 6 § 1 and Article 1 of Protocol No. 1 about
the non-enforcement of the judgments 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 it is not necessary to examine
whether there has been a violation of Article 1 of the Convention.
Done in English, and notified in writing on 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
