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FIFTH
SECTION
CASE OF MIKHAYLOV v. UKRAINE
(Application
no. 22986/04)
JUDGMENT
STRASBOURG
29
March 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 Mikhaylov 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,
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 6 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22986/04) 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 Viktor Aleksandrovich
Mikhaylov (“the applicant”), on 14 June 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
22 September 2005 the Court decided to communicate the complaints
under Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 concerning the lengthy non-enforcement of the judgments 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 1973 and resides
in the town of Krasniy Luch, Lugansk region, Ukraine.
- In November 1998 the applicant
instituted proceedings against his former employer, the State
“Pryvillya” group of companies (Концерн
«Привілля»),
challenging his dismissal and claiming salary arrears. After several
examinations by different courts, on 7 March 2003 the Antratsytivskyy
Town Court reinstated the applicant in his position and awarded him
5,137.51
Ukrainian hryvnias (“UAH”) in salary arrears (Рішення
Антрацитівського
міського суду).
The judgment remains unenforced.
- The applicant instituted another
set of proceedings against the same defendant in the Krasnoluchskyy
Town Court, claiming salary arrears. On 1 November 2000 the
court awarded the applicant UAH 56.02
(Рішення
Краснолуцького
міського суду
Луганської
області). The
judgment remains unenforced.
- The applicant instituted several
proceedings in the Krasnolutskyy Town Court against another of his
former employers, the State “Imeni Izvestiy” mine (ДВАТ
шахта імені
«Ізвєстій»
ДХК «Донбасантрацит»),
claiming salary arrears and other payments. On 26 October 2000,
13 February 2002, 10 February 2003 and 30 July 2003, the court
awarded the applicant a total of UAH 10,466.47.
- By 10 September 2003 and 27 March 2006 the judgments of
26 October 2000 and 13 February 2002, respectively, were
enforced in full. The applicant received UAH 2,852.88
in enforcement of other judgments; the rest of amounts awarded
remains unpaid.
- In 2003 the applicant instituted
proceedings in the Krasnolutskyy Town Court against the Krasnolutskyy
Town Bailiffs' Service, claiming compensation for the failure to
enforce the judgments in his favour. On 16 October 2003 the
court rejected the applicant's claim, finding no fault had been
committed by the Bailiffs' Service, which had acted properly
in trying to enforce the judgments. The court further noted that the
debtors' property was in a tax lien and that, according to the Law on
the Introduction of a Moratorium on the Forced Sale of Property, on
26 December 2001 a ban on the forced sale of assets belonging to
undertakings in which the State holds at least 25% of the share
capital had been introduced. On 12 February
2004 the Court of Appeal of the Lugansk Region upheld this judgment.
- On 26 June 2003 the “Pryvillya”
group of companies was declared bankrupt.
II. RELEVANT DOMESTIC LAW
11. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about the lengthy non-enforcement of the
judgments in his favour. He invoked Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1. These
Articles provide, 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 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 submitted no observations on the admissibility of the
applicant's complaints.
- The
Court notes that the judgment of 26 October 2000 was enforced by 10
September 2003 that is more than six months before the date on which
the application was submitted to the Court. It follows that this part
of the application must be rejected, pursuant to Article 35 §§
1 and 4 of the Convention, for having been submitted out of time.
- The Court concludes that the remainder of the
applicant's complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 about the
delay in the enforcement of the judgments in his favour is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that these complaints are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
- The Government maintained that the applicant's right
to have the judgments in his favour enforced had been never
questioned. The Government further argued that the State could not be
considered responsible for the debts of its enterprises and the
responsibility of the State in this situation was limited to the
organisation and proper conduct of enforcement proceedings. The
length of the enforcement proceedings had been caused by the
critical financial situation of the debtor companies and the
Bailiffs' Service had performed all necessary actions and could not
be blamed for the delay. The Government further submitted that the
judgments of 26 October 2000 and 13 February 2002 had been enforced
in full and the judgments of 10 February 2003 and 30 July 2003 –
in part.
- The
applicant disagreed. In particular, he argued that the Government
failed to submit any decisions about the closure of the enforcement
proceedings and therefore the judgments, including the judgments of
26 October 2000 and 13 February 2002, could not be considered as
enforced.
- The
Court notes that the Government have submitted sufficient proves to
conclude that the amounts awarded to the applicant by the judgments
of 26 October 2000 and 13 February 2002 had been paid to him.
Therefore these judgments can be considered as enforced.
- The Court further notes that the other judgments in
the applicant's favour have not been enforced for a considerable
period of time; the longest delay being more than six years and four
months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases like the present application (see, among others,
Romashov v. Ukraine, cited above, §§ 42-46;
Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July
2004).
- Having examined all the materials 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.
- There has, accordingly, been a violation of
Article 6 § 1 of the Convention and of
Article 1 of Protocol No. 1.
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 in respect of pecuniary damage
UAH 50,353.35,
including the amount of the judgments' debts still owed to him, and
UAH 43,035
in respect of non-pecuniary damage.
- The
Government maintained that the applicant could have applied to the
domestic courts claiming compensation for the loss of value of the
amounts awarded. As he failed to do so his claim should be rejected.
The Government further maintained that the amount of the
non-pecuniary damage claimed by the applicant was exorbitant and
unsubstantiated.
- Insofar
as the applicant claimed the amounts awarded to him by the judgments
at issue, the Court considers that the Government should pay him the
outstanding debts (see paragraph 8) in settlement of his pecuniary
damage. The Court dismisses the rest of the applicant's claims for
pecuniary damage as they are unsubstantiated. The Court further
considers that the applicant must have sustained non-pecuniary
damage, and awards him, deciding on an equitable basis, EUR 2,600 in
this respect.
27. The
Court further notes that it is undisputed that the State still has an
outstanding obligation to enforce the non-pecuniary part of the
judgment of 7 March 2003 in the applicant's favour.
B. Costs and expenses
- The
applicant did not claim any costs and expenses occurred before the
Court.
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 applicant's complaint under Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 about
the lengthy non-enforcement of the judgment of 26 October 2000
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
1 of Protocol No. 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 judgments'
debts still owed to him, as well as EUR 2,600 (two thousand six
hundred euros) in respect of non-pecuniary damage plus any tax that
may be chargeable;
(b) that
the above amount shall be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) 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 29 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Peer Lorenzen
Deputy Registrar President
