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FIFTH
SECTION
CASE OF KOLOSAY v. UKRAINE
(Application
no. 25452/03)
JUDGMENT
STRASBOURG
11
January 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 Kolosay 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 J. Borrego Borrego,
Mr M. Villiger,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 4 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 25452/03)
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
Nikolay Ivanovich Kolosay (“the applicant”), on 15 July
2003.
2. The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z. Bortnovska and Mrs V. Lutkovska.
- On
27 November 2003 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, a Ukrainian national, was born in 1940 and lives in the
town of Nova Kakhovka, Kherson Region, Ukraine. He is a former
employee of the State-owned OJSC “Pivdenelektromash”
(“the Company,” ВАТ
“Південелектромаш”).
- The background facts for the case are described in the
case of Semenov v. Ukraine (no. 25463/03, §§ 5-8,
13 December 2005).
- On
20 March 2003 the Nova Kakhovka City Court (Новокаховський
міський суд
Херсонської
області) ordered the
Company to pay the applicant UAH 4,827
in salary arrears. This judgment became final and the writs of
execution were transferred to the Bailiffs.
- By
letter of 7 July 2003, the Bailiffs' Service informed the applicant
that the enforcement proceedings had been suspended due to the
proceedings of financial rehabilitation of the debtor.
- On
15 January 2004 the Bailiffs' Service resumed the execution
proceedings in the applicant's case. On 23 January and 10 February
2004, it ordered the seizure of the Company's accounts. However, on
27 February 2004 the Kherson Regional Commercial Court, on the
trustee's appeal, quashed these decisions because the Bankruptcy Act
envisaged the obligatory suspension of enforcement proceedings
pending the resolution of a bankruptcy case.
- The
judgment in the applicant's favour remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and
Trykhlib v. Ukraine
(no. 58312/00, §§ 25-32, 20
September 2005).
THE LAW
- The
applicant complained of the failure of the State authorities to
execute the judgment of 20 March 2003 given in his favour. He alleged
an infringement of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention which
provide, in so far as relevant, as follows:
Article 6 § 1 of the Convention
“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 or to secure the payment of taxes or other
contributions or penalties.”
I. ADMISSIBILITY
- The
Government raised objections 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, for example, the aforementioned cases of Romashov
and Trykhlib, §§ 23-32 and 36-42,
respectively). 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 20 March 2003 raises
serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It
finds no ground for declaring this complaint inadmissible. It must
therefore be declared admissible. For the same reasons, the Court
declares admissible the applicant's complaint under Article 1 of
Protocol No. 1.
II. MERITS
- The
Government maintained that the lengthy failure to enforce the
judgment in the applicant's favour had been caused by the ongoing
bankruptcy proceedings against the debtor Company and its
critical financial situation. The Government further maintained that
the Bailiffs' Service had performed all necessary actions and cannot
be blamed for the delay. The applicant disagreed.
- The
Court notes that the judgment of 20 March 2003 has remained
unenforced for the period exceeding three years and seven months.
- The Court further recalls that it has already found
violations of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 in a number of similar cases,
including the cases concerning the same State-owned debtor –
the OJSC “Pivdenelektromash” (see, for instance,
Trykhlib v. Ukraine, cited above, §§ 52-53;
Semenov v. Ukraine, cited above, §§ 24 25,
Chernyayev v. Ukraine, no. 15366/03, §§ 19-20
and 23-25, 26 July 2005 and Anatskiy v. Ukraine,
cited above, §§ 21-22).
- 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.
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
- The applicant claimed pecuniary damage corresponding
to the sum awarded to him by the judgment of 20 March 2003. He
further claimed compensation for non-pecuniary damage, but left the
amount to the discretion of the Court.
- The
Government submitted that these claims should be rejected for being
unsubstantiated.
- The
Court notes that, as the judgment of 20 March 2003 remains
unenforced, the Government should pay the applicant the outstanding
debt in order to satisfy his claim for pecuniary damage.
- The
Court further takes the view that the applicant has suffered some
non-pecuniary damage as a result of the violations found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant the sum of EUR 1,300
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 25.83 (EUR 4.3) in postal expenses. He
presented postal invoices.
- The
Government did not make any comment in this respect.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses in so far as it has been shown that these have
been actually and necessarily incurred and were reasonable as to
quantum. The Court therefore awards the claimed amount.
C. Default interest
27. 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
(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 judgment
debt still owed to him, as well as EUR 1,304.3 (one thousand three
hundred and four euros and thirty cents) in respect of non-pecuniary
damage, and costs and expenses;
(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, plus any tax that may be chargeable;
(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.
Done in English, and notified in writing on 11 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
