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FIFTH
SECTION
CASE OF MARTYNOV v. UKRAINE
(Application
no. 36202/03)
JUDGMENT
STRASBOURG
14
December 2006
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 Martynov 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 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36202/03) 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 Ivan Nikolayevich
Martynov (“the applicant”), on 14 October 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska, succeeded by Mr Y. Zaytsev.
- On
28 April 2005 the Court decided to communicate the
complaint under Article 6 § 1 of the Convention
concerning the 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 1975 and lives in
Dniprodzerzhynsk. At the material time he was an employee of the CJSC
“Dniprovsky Zavod Mineralnykh Dobryv” (“the
Company,” ЗАТ
“Дніпровський
завод мінеральних
добрив”),
in which the State owned 40% of the share capital. The company was
therefore subject to the Law of 29 November 2001 “on
the Introduction of a Moratorium on the Forced Sale of Property.”
- On
10 April 2003 the Bagliysky District Court of
Dniprodzerzhynsk (Баглійський
районний суд
м. Дніпродзержинська)
ordered the Company to pay the applicant UAH 3,047.03
in salary arrears and various payments. This judgment was not
appealed against and became final.
- On
14 April 2003 the Bagliysky District Bailiffs’
Service (“the Bailiffs,” Відділ
Державної
виконавчої
служби Баглійського
районного
управління
юстиції в м.
Дніпродзержинську)
instituted enforcement proceedings in respect of the above judgment.
- On
21 October 2003 the Bailiffs informed the applicant that
the delay in the enforcement of the judgment of 10 April 2003
was due to the large number of enforcement proceedings taken against
the Company, the holding of its property in a tax lien and a
statutory moratorium on the forced sale of State property.
- On
7 April 2004 the Dnipropetrovsk Commercial Court
(Господарський
суд Дніпропетровської
області) instituted
bankruptcy proceedings against the Company and introduced a
moratorium on payment of its debts.
- On
30 May 2005 the applicant received the award due to him less
UAH 200.
This part of the judgment remains unenforced to the present day.
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. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicant introduced a new complaint under
Article 4 § 2 of the Convention with regard to
the facts of the present case.
- In
the Court’s view, the new complaint is not an elaboration of
the applicant’s original complaint under Article 6 § 1
of the Convention, lodged with the Court approximately two years and
three months earlier, on which the parties have commented. The Court
considers, therefore, that it is not appropriate now to take this
matter up (see Skubenko v. Ukraine
(dec.),
no. 41152/98, 6 April 2004).
II. ADMISSIBILITY
A. The applicant’s complaint under Article 6 §
1 of the Convention
- The
applicant complained about the State authorities’ failure to
enforce the judgment of 10 April 2003 in due time. He
invoked, in substance, Article 6 § 1 of the
Convention, which provides, 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. ...”
- 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 of
judgments against the State-owned companies (see e.g. Romashov
v. Ukraine, no. 67534/01, §§ 30-32, 27 July
2004 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 concludes that the applicant’s complaint under
Article 6 § 1 of the Convention about the delay
in the enforcement of the judgment of 10 April 2003 raises
issues of fact and law under the Convention, the determination of
which requires an examination on the merits. It finds no ground for
declaring this complaint inadmissible. The Court must therefore
declare it admissible.
B. Other complaints
- The
applicant further complained about a violation of Articles 2 and
53 of the Convention on account of the non-enforcement of the
judgment in his favour.
- The
Court finds that this part of the application is wholly
unsubstantiated and must therefore be rejected as being manifestly
ill founded, pursuant to Article 35 §§ 3 and 4 of the
Convention (see e.g., Komar and Others v. Ukraine, nos.
36684/02, 14811/03, 26867/03, 37203/03, 38754/03 and 1181/04,
§§ 18-19, 28 February 2006).
III. MERITS
- In
their observations on the merits of the applicant’s complaint,
the Government contended that there had been no violation of
Article 6 § 1.
- The
applicant disagreed.
- The
Court notes that the judgment of 10 April 2003 has remained
unenforced for the period exceeding three years and eight months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Sokur v. Ukraine, cited above, §§ 36-37).
- 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.
IV. 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 the global sum of USD 10,000 (EUR 8,373)
in respect of pecuniary and non-pecuniary damage.
- The
Government maintained that the applicant has not substantiated his
claims.
- The
Court recalls that the judgment of 10 April 2003 remains
partly unenforced and finds that the Government should pay the
applicant the outstanding debt in order to satisfy his claim for
pecuniary damage. Further, the Court considers that the applicant
must have sustained non-pecuniary damage as a result of the violation
found. Making its assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant
EUR 1,000 (one thousand euros) in respect of non pecuniary
damage.
B. Costs and expenses
- The applicant 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 complaint under Article 6 § 1
of the Convention admissible and the complaints under Articles 2 § 1
and 53 of the Convention inadmissible;
- Holds that there has been a violation of
Article 6 § 1 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, the unsettled
judgment debt still owed to him as well as 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 amounts 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 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
