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FIFTH
SECTION
CASE OF ALEKSANDR SHEVCHENKO v. UKRAINE
(Application
no. 8371/02)
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 Aleksandr Shevchenko 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. 8371/02) 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 Aleksandr
Aleksandrovich Shevchenko (“the applicant”), on 31
January 2002.
- The
applicant was represented before the Court by Mr I. Pogasiy, a
lawyer, practicing in the city of Kirovograd, Ukraine. The Ukrainian
Government (“the Government”) were represented by their
Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
21 January 2005 the Court decided to communicate the complaints under
Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 concerning the lengthy non-enforcement of
the judgment in the applicant's favour and the complaint under
Article 6 § 1 of the Convention concerning the length of the
third set of proceedings 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 1963 and lives in the city of Kirovograd,
Ukraine.
A. First set of proceedings
- On
an unidentified date the applicant instituted proceedings in the
Leninskyy District Court of Kirovograd against his former employer,
the State Kirovograd Store No. 72 for military personnel
(Кіровоградський
воєнторг
№ 72) claiming salary arrears. On 11 September 1998 the
court awarded the applicant 1,834.92
Ukrainian hryvnias (UAH).
- The
Government submitted that on 16 October 2003 the debtor in the
applicant's case had transferred the amount awarded by the judgment
of 11 September 1998 to the Bailiffs Service's bank account. By
letter of 30 January 2004 the applicant was requested to provide
information necessary for a bank or postal transfer of this amount
from the Bailiffs Service's account to the applicant. Since the
applicant failed to provide such information the awarded amount
remains unpaid to him.
B. Second set of proceedings
- On
28 October 2001 the applicant instituted administrative proceedings
in the Leninskyy District Court against the Bailiffs' Service
claiming compensation for the non-enforcement of the judgment in his
favour. On 9 November 2001 the court returned the applicant's
complaint on the ground that it should have been lodged under the
civil procedure. On 21 December 2001 the same court returned the
applicant's appeal against the decision of 9 November 2001 for
non-compliance with the procedural formalities.
C. Third set of proceedings
- On
31 January 2002 the applicant instituted proceedings in the Leninskyy
District Court against his former employer, the Kirovograd Store No.
72 for military personnel, claiming compensation for the loss of
earnings caused by the lengthy non-enforcement of the judgment in his
favour. On 5 September 2002 the court left the applicant's action
without consideration as the parties twice failed to appear in court
hearings. According to the applicant, he was informed about this
decision only upon his request lodged with the court in December
2003. In February 2004 the applicant appealed against the decision of
5 September 2002. On 2 June 2004 the Kirovograd Regional
Court of Appeal quashed this decision and remitted the case for a
fresh consideration. On 25 April 2005 the Leninskyy District Court
found against the applicant. The applicant submitted that he had
learned about this judgment only from the Government's observations
submitted to the Court in September 2005. He did not request to renew
a time-limit for lodging an appeal against it.
D. Fourth set of proceedings
- On
15 September 2003 the applicant instituted proceedings in the
Leninskyy District Court against the Bailiffs' Service, the Ministry
of Justice of Ukraine and the State Treasury claiming compensation
for pecuniary and non-pecuniary damage caused by the non-enforcement
of the judgment in his favour. On 11 February 2004 the court found
against the applicant. On 7 April 2004 the same court returned the
applicant's appeal as he had failed to pay the court fee. On 8 July
2004 the Kirovograd Regional Court of Appeal upheld the decision of 7
April 2004. The applicant appealed against these decisions in
cassation and proceedings are still pending.
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 about the lengthy non-enforcement of the
judgment of 11 September 1998 given in his favour, relying on Article
6 of the Convention and Article 1 of Protocol No. 1. The applicant
also complained under Article 13 of the Convention that he had
no effective remedies in respect of the above complaints. The
applicant further complained under Article 6 § 1 of the
Convention about the length and unfairness of the second, third and
fourth sets of proceedings. The applicant finally complained under
Article 13 of the Convention about the ineffectiveness of the
judicial system as a whole. The Articles invoked 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 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 ...”
I. NON-ENFORCEMENT OF THE JUDGMENT IN THE APPLICANT'S
FAVOUR
A. Admissibility
- The
Government raised objections regarding the applicant's victim status
and exhaustion of domestic remedies similar to those which the Court
has already dismissed in the case of Romashov v. Ukraine (see
the Romashov judgment, cited above, §§ 23-33). The
Court considers that the present objections must be rejected for the
same reasons.
- The
Court concludes that the applicant's complaints under Articles 6 §
1 and 13 of the Convention and Article 1 of Protocol No. 1
raise issues of fact and law under the Convention, the determination
of which requires an examination of the merits. It finds no ground
for declaring them inadmissible.
B. Merits
1. The applicant's complaint under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
- The
Government maintained that the judgment of 11 September 1998 in the
applicant's favour had been enforced in full because the relevant
debt amount had been transferred to the Bailiffs' Service account.
The Government further maintained that the Bailiffs' Service had
performed all necessary actions and could not be blamed for the
delay.
- The
applicant disagreed. In particular, he insisted that the availability
of the amount awarded to him on the Bailiffs Service's bank account
could not be considered as an enforcement of the judgment in his
favour.
- The
Court notes that the amount awarded to the applicant by the judgment
of 11 September 1998 was available to him as of 16 October 2003 when
it was transferred to the Bailiffs' Service bank account. Therefore,
the Court considers that the judgment in question could be regarded
as enforced by 16 October 2003.
- The
Court, however, notes that the judgment of 11 September 1998 remained
unenforced for more than five years and one month.
- 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.
2. The applicant's complaint under Article 13 of the
Convention
- The
Government referred to their observations about the non-exhaustion by
the applicant of effective domestic remedies (see paragraph 12
above).
- The
applicant insisted that he had had no effective domestic remedy in
respect of his complaints about the non-enforcement of the judgment
in his favour.
- The
Court, having regard to its case-law, considers that the applicant
did not have an effective domestic remedy, as required by Article 13
of the Convention, to redress the damage created by the delay in the
present proceedings (see Voytenko v. Ukraine, no.
18966/02, § 48, 29 June 2004). Accordingly, there has been
a breach of this provision.
II. OTHER COMPLAINTS
A. The length of the third set of proceedings
- The
Government did not provide any observations on admissibility of the
applicant's complaint under Article 6 § 1 of the Convention
about the length of the third set of proceeding (see paragraph 8
above).
- The
Court recalls that the reasonableness of the length of
proceedings must be assessed in accordance with the circumstances of
the case and the following criteria: the complexity of the case, the
behaviour of the applicant and that of the competent authorities and
what was at stake for the applicant in the dispute (see, among
many other authorities, Frydlender v. France [GC],
no. 30979/96, § 43, ECHR 2000-VII).
- In
the instant case, the Court notes that the proceedings started on
31 January 2002 and terminated on an unidentified date in
September 2005 when the applicant learned about the judgment of 25
April 2005. Therefore, they lasted for three years and eight
months, and included two instances.
- The
Court finds that the subject matter of the litigation was not
especially difficult. The Court further notes that the proceedings in
question included two periods of judicial inactivity caused by the
failure of the first instance court to inform the applicant in due
time about the decisions taken in his case. However, the Court also
notes that the applicant failed to show that he had
undertaken any steps between September 2002 and December 2003, and
after 2 June 2004 to inquire about the state of proceedings
in his case. The Court reiterates that only delays attributable to
the State may justify a finding of non-compliance with the
“reasonable time” requirement (see Humen v. Poland,
no. 26614/95, § 66, judgment of 15 October 1999). The
Court therefore concludes that the length of proceedings in the
instant case did not exceed a reasonable time within the meaning
of Article 6 § 1.
- It
follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4
of the Convention.
B. Other matters
- The
Court has examined the remainder of the applicant's complaints and
considers that, in the light of all the materials in its possession
and in so far as the matters complained of were within its
competence, they did not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application must be rejected 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. Damage
- The
applicant claimed UAH 67,002.10
in respect of pecuniary damage, including the judgment debt, and UAH
92,400
in respect of non pecuniary damage.
- The
Government submitted that these claims were exorbitant and
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 1,600 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 18,650
for the costs, expenses and legal representation incurred before the
domestic courts and the Court.
- The
Government maintained that only those expenses which were actually
and necessarily incurred should be awarded.
- The
Court reiterates that, in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, among many other
authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 62, ECHR 1999-VIII).
- The
Court considers that these requirements have not been met in the
instant case. In particular, it notes that the case was not
particularly complex and the applicant was dispensed from the general
obligation to be legally represented. However, the applicant may have
incurred some costs and expenses for his representation and the
proceedings before the Court.
Regard
being had to the information in its possession and to the above
considerations, the Court awards the applicant EUR 300 for costs
and expenses.
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 complaints under
Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1 about the lengthy
non-enforcement of the judgment of 11 September 1998 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;
- Holds that there has been a violation of
Article 13 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 according to
Article 44 § 2 of the Convention, EUR 1,600
(one thousand six hundred euros) in respect of non-pecuniary damage
and EUR 300 (three hundred euros) in respect of costs and expenses,
plus any tax that may be chargeable, to be converted into the
currency of the respondent State at the rate applicable on the date
of settlement;
(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 26 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
