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FIFTH
SECTION
CASE OF KOOPERATIV KAKHOVSKIY-5 v. UKRAINE
(Application
no. 20728/04)
JUDGMENT
STRASBOURG
19
February 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 Kooperativ
Kakhovskiy-5 v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
judges,
Stanislav Shevchuk, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20728/04) 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-based cooperative association
“Kooperativ Kakhovskiy no. 5”.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant association alleged, in particular, violations of
Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1 on account of non-enforcement of a
final judgment given in its favour against a public entity.
- On
5 December 2005 the Court 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 association was registered in 1990 and is located in the
town of Kakhovka, Kherson region.
- In
1990 the applicant association entered into a contract with the
Construction Department of the Kherson Regional State Administration
(“the Department”; Управління
капітального
будівництва
Херсонської
обласної державної
адміністрації),
according to which the latter undertook to construct a block of flats
for the applicant association's members.
- In
January 2002 the applicant association instituted proceedings in the
Commercial Court of the Kherson Region against the Department,
seeking compensation for defaulting on the construction project.
- On
5 April 2002 the court found in part for the applicant association
and ordered the Department to pay it 144,066.74 Ukrainian
hryvnyas (UAH) in compensation. On 27 March 2003 the Commercial Court
of Appeal of the Odessa Region quashed the decision of the
first-instance court and adopted a new decision, ordering the
Department to pay the applicant association UAH 2,227,269.40 in
compensation.
- On
20 June 2003 the Higher Commercial Court of Ukraine rejected the
Department's request for leave to appeal in cassation for failure to
comply with procedural requirements.
- On
15 July 2003 the Commercial Court of the Kherson Region issued a writ
of execution for the decision of the Commercial Court of Appeal of
the Odessa Region of 27 March 2003.
- On
11 August 2003 the Suvorovskiy District Bailiffs' Service of Kherson
instituted enforcement proceedings.
- By
decisions of 22 September and 22 December 2003, the Higher Commercial
Court of Ukraine rejected the Department's request for leave to
appeal in cassation for being lodged out of time.
- The
decision of 27 March 2003 remains unenforced to the present date with
reference to the debtor's lack of funds and realisable assets.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the judgment of 27 July
2004 in the case of Romashov
v. Ukraine
(no. 67534/01, §§
16-19).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND
13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant association complained that the fact that the judgment of
27 March 2003 given in its favour had remained unenforced
for a considerable period of time had been incompatible with the
guarantees set forth in Article 6 § 1 of the
Convention and that it had no effective remedies in respect of the
complaint about the length of the enforcement of this judgment as
required by Article 13 of the Convention. Additionally, it
complained that the failure of the authorities to enforce the
judgment at issue breached its 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 ....”
- The
Government conceded that the authorities had done everything in their
power to collect the debt due to the applicant association and had
therefore not infringed its rights guaranteed by the Convention.
A. Admissibility
- The
Court considers that the applicant association'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.
B. Merits
1. Alleged violation of Article 6 § 1
of the Convention
- The Court reiterates that the judgment at issue in the
present case has remained unenforced for a period exceeding five and
a half years. The Government have not provided a plausible
explanation for such a delay.
- 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, for instance, Romashov v. Ukraine,
cited above, §§ 42-46, and 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,
§§ 51-55, ECHR 2004 XII)).
- 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.
2. Alleged violation of Article 13 of the
Convention
- The
Court notes that the Government have provided no reference to any
effective domestic remedy, by way of which the applicant association
could, as required by Article 13 of the Convention, have obtained a
ruling upholding its right to have its claims finally settled within
a reasonable time, as set forth in Article 6 § 1
of the Convention.
- Regard
being had to its case-law on the subject (see, for example, Voytenko
v. Ukraine, no. 18966/02, §§ 46-48,
29 June 2004, and Vasylyev v. Ukraine, no. 10232/02,
§ 41, 13 July 2006), the Court finds that there has been a
breach of Article 13.
3. Alleged violation of
Article 1 of Protocol No. 1
- The
Court reiterates the findings in 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant association also relied on Articles 8,
10, 11 and 14 of the Convention with respect to the facts of the
present case.
- Having considered the applicant's submissions in the
light of all the material in its possession, the Court finds that in
so far as the matters complained of are within its competence they do
not disclose any appearance of a violation of the rights and freedoms
set out in the above provisions of the Convention.
- It follows that this part of the application must be
declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 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. Pecuniary damage
- In
its initial application the applicant association claimed
UAH 3,674,222.96 by way of compensation for pecuniary damage.
This amount represented the judgment debt due to it and the remainder
of the claim against the debtor, which had been rejected by domestic
courts as unsubstantiated.
- Within
the time-limit allotted by the Court for submission of just
satisfaction claims, the applicant association amended its initial
submissions by seeking an additional EUR 25,000 for each of its
members to buy an apartment as well as UAH 1,000,624.23 by way
of default interest.
- The
Government found the initial claims exorbitant and unsubstantiated
and did not comment on the amended claims.
- Regard
being had to the nature of the violations found in the present case,
the Court finds that the Government should pay the applicant
association the unsettled judgment debt by way of compensation for
pecuniary damage.
- As
regards the remainder of the claim, the Court finds no causal link
between the sums claimed and the violations found in the present
case, regard being had, in particular, to the speculative nature of
the applicant's submissions (see, mutatis mutandis, Prodan
v. Moldova, no. 49806/99, § 73, ECHR 2004 III
(extracts) and Rakitin v. Ukraine, no. 7675/04, § 30,
11 January 2007). The Court therefore rejects this part of the claim.
B. Non-pecuniary damage
- The
applicant association also claimed non-pecuniary damage in the amount
of 1,000 euros (EUR) for each of its seventy members for each year
during which the Department had defaulted on its obligations
vis-à-vis the applicant association.
- The
Government contended that this claim was unsubstantiated and
exorbitant.
- The
Court notes that the applicant association, being a legal entity, did
not claim any non-pecuniary damage on its own behalf. In the
circumstances of the present case the Court considers that the
finding of a violation constitutes sufficient just satisfaction in
respect of non-pecuniary damage.
C. Costs and expenses
- Initially
the applicant association also claimed UAH 96,000 for the costs
and expenses incurred before the domestic authorities in connection
with numerous attempts to obtain value for the money invested in the
construction project since 1993 and subsequently before the domestic
authorities and the Court in connection with attempts to collect the
judgment debt. Subsequently the claim was amended to UAH 110,000.
The applicant association did not present any documents concerning
the expenses incurred in connection with domestic enforcement or
Convention proceedings.
- The
Government contested this claim as unsubstantiated and exorbitant.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the fact that the applicant has presented no documents enabling the
Court to identify the amount of expenses incurred in connection with
attempts to redress the violations found in the present case (namely,
the prolonged non-enforcement of the judgment), the Court rejects the
claim for costs and expenses.
D. 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 complaints under Article 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
admissible and the remainder of the application inadmissible;
- 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 that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant association;
- Holds
(a) that the respondent State is to pay the applicant
association, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the unsettled judgment debt still owed to it under
the judgment of 27 March 2003;
(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 19 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
