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FIFTH
SECTION
CASE OF KOLOSENKO v. UKRAINE
(Application
no. 40200/02)
JUDGMENT
STRASBOURG
26 April
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 Kolosenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40200/02) 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 Leonid Ivanovich
Kolosenko (“the applicant”), on 18 October 2002.
- The
applicant was represented before the Court by Mr Igor Arturovich
Voron, a lawyer, practising in the town of Dniprodzerzhynsk, the
Dnipropetrovsk region, Ukraine. The Ukrainian Government (“the
Government”) were represented by their Agents, Mrs V.
Lutkovska and Mr Y. Zaytsev.
- On
1 December 2005 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 was born in 1951 and resides in the town of
Dniprodzerzhynsk, the Dnipropetrovsk region, Ukraine.
- On
12 October 2000 the Zavodskyy District Court of Dniprodzerzhynsk
awarded the applicant 1,804.61
Ukrainian hryvnias (UAH) in salary arrears and in compensation for
moral damage against the Dniprodzerzhynskmiskelektrotrans Municipal
Company (Комунальне
експлуатаційне
підприємство
«Дніпродзержинськміськелектротранс»).
- The
Government submitted that in 2001 the applicant received UAH 895,
the rest of the debt amount remaining unpaid.
- The
applicant contested this submission and stated that the above amount
had been received by him in enforcement of another judgment in his
favour adopted on 18 March 1999 against the same debtor.
- On
26 June 2002 the Bailiffs' Service returned the writ of enforcement
to the applicant. In particular, it was stated that the applicant had
been proposed to take some property items (equipment, an
administrative building etc.) from the debtor in enforcement of the
judgment in his favour. As the applicant failed to inform the
Bailiffs' Service whether he wanted to take any property, the
Bailiffs' Service discontinued the enforcement proceedings.
- On
17 June 2003 the Dnipropetrovsk Region Commercial Court declared
the debtor enterprise bankrupt.
II. RELEVANT DOMESTIC LAW AND PRACTICE
10. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
- The
applicant complained under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 about the
lengthy non-enforcement of the judgment in his favour. 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 ....”
I. ADMISSIBILITY
- The
Government raised objections regarding exhaustion of domestic
remedies. In particular, the Government stressed that the applicant
had failed to reintroduce the writ of enforcement or to appeal
against the decision to discontinue the enforcement proceedings in
his case. They further maintained that the applicant had failed to
join the bankruptcy proceedings as a creditor and therefore had
deprived himself of a possibility to recover the debt owned to him.
- The
Court reiterates that on numerous occasions it has already pointed
out that having obtained a judgment and an execution order against a
particular State authority the applicants should not be required to
institute, on their own initiative, other proceedings against a
different State agency to meet their claims (see, mutatis
mutandis, Plotnikovy v. Russia, no. 43883/02, § 16,
24 February 2005; Vasylyev v. Ukraine, no. 10232/02, §§
24-33, 13 July 2006).
- Therefore,
the Court finds that, the applicant cannot be reproached for not
using the remedies invoked by the Government and has therefore
complied with the requirements of Article 35 § 1.
Accordingly, the Court dismisses the Government's contentions.
- The Court further concludes that the applicant's
complaints under Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 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.
II. MERITS
- The
Government maintained that the debtor in the present case was a
municipal enterprise and, therefore, the State could not be
considered responsible for its debts. They further submitted that the
judgment in the applicant's favour had been enforced in part and that
the Bailiffs' Service had performed all necessary actions for its
enforcement.
- The
applicant disagreed. In particular, the applicant insisted that he
had received UAH 895 in enforcement of another judgment in his favour
adopted on 18 March 1999. The applicant further stated that he had
refused to take the property in enforcement of the judgment as this
property (an old tramway car, a ruined building etc.) had been in a
very bad condition and its value had in several times exceeded the
amount of the debt so that he would have had to pay the difference.
- The
Court notes that the Government failed to provide any substantiation
for their statement that the amount of UAH 895 received by the
applicant was paid in enforcement of the judgment of 12 October 2000.
In particular, the payment slip provided by the Government does not
contain any reference to the enforcement proceedings concerning the
judgment of 12 October 2000. The Court further considers that the
proposition to take property items in enforcement of the judgment in
the applicant's favour could, in the circumstances of the present
case, not be considered as an enforcement of a judgment with a purely
monetary award.
- Therefore,
the judgment in the applicant's favour remained unenforced for more
than six years and five 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 applications (see, Raisa Tarasenko v. Ukraine, no.
43485/02, 7 December 2006; Shmalko v. Ukraine,
no. 60750/00, § 55-57, 20 July 2004).
- 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.
- 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 USD 10,000
in respect of non-pecuniary damage.
- The
Government contested the applicant's claims, which they alleged were
exorbitant.
- Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicant EUR 2,000 in
respect of his non-pecuniary claim.
- The
Court further notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment at issue. Accordingly,
the applicant remains entitled to recover the principal amount of the
debt awarded to him in the course of the domestic proceedings.
B. Costs and expenses
- The
applicant did not submit any claims 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 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;
- 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, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, 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 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 26 April 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President