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FIFTH SECTION
CASE OF SHAMRAY v. UKRAINE
(Application no. 74096/01)
JUDGMENT
STRASBOURG
6
September 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 Shamray 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 Mr J.S. Phillips,
Deputy Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74096/01) 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 Oleksandr Viktorovych
Shamray (“the applicant”), on 22 March 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska, succeeded by
Mr Y. Zaytsev.
- On
7 July 2003 the Court decided to communicate the complaint
concerning the non-enforcement of the final judgments given 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 1954 and lives in Yenakiyeve.
- In
1999 the applicant instituted civil proceedings against his former
employers, the State-owned mines “Yenakiyivska” and
“Poltavska”, seeking compensation for damage to his
health.
- On
12 February 1999 the Yenakiyeve Court (Єнакіївський
міський
суд)
ordered the mine “Poltavska” to pay the applicant
a lump sum of 10,922.79 hryvnyas (UAH).
On 22 March 1999 the Donetsk Regional Court (the “Regional
Court”; Донецький
обласний суд)
amended this judgment, having additionally awarded the applicant
arrears in monthly allowances for the period of October 1996 –
October 1999.
- On
22 March 1999 the Regional Court ordered the mine
“Yenakiyivska” to pay the applicant the total
UAH 10,263.24
in monthly allowance arrears.
- After
the above decisions had become final and the enforcement proceedings
had been instituted in their respect, the applicant unsuccessfully
requested the judicial authorities to re-open the proceedings,
seeking higher compensation.
- According
to the Government, the judgments debts were fully paid to the
applicant in several instalments, last payments having been made in
September 2003. To this end, the Government presented copies of the
decisions to terminate the enforcement proceedings taken on 19 and
26 September 2003 by the Bailiffs (Відділ
Державної
виконавчої
служби Єнакіївського
міського управління
юстиції) in
respect of the mines “Yenakiyivska” and “Poltavska”
respectively.
- The
applicant maintained that he had received only a part of the
judgments debt due to him. He did not, however, specify the
outstanding amount and provided no information on whether he had
challenged the Bailiffs' decision to terminate the enforcement
proceedings.
- After
the case had been communicated to the Government, the applicant
additionally submitted a number of documents concerning his other
disputes and proceedings against various parties, however, he neither
described the relevant facts, nor articulated any separate complaints
in their respect.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. COMPLAINTS CONCERNING THE NON-ENFORCEMENT OF THE
JUDGMENTS
- The
applicant complained about the State authorities' failure to enforce
the judgments of 12 February and 22 March 1999 in due
time. He invoked Articles 6 § 1 and 13 of the
Convention and Article 1 of Protocol No. 1, which
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
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
1. The applicant's victim status
- The
Government submitted that, since the decisions at issue had been
enforced, the applicant can no longer be considered a victim of a
violation of his rights under Article 6 § 1. They
therefore proposed that the application be declared inadmissible.
- The
applicant disagreed. In particular, he argued that the decisions had
not been enforced in full.
- The
Court observes that it is not clear from the parties' submissions
whether these decisions have been enforced in full. However, it
assumes that the decisions were fully enforced by September 2003,
given the fact that the Bailiffs established that the amounts due
under the decisions had been paid to the applicant in full, which the
applicant did not contest at the national level.
- However,
the fact that the decisions in the applicant's favour were enforced
does not deprive the applicant of his victim status in relation to
the period during which the court decisions in his favour remained
unenforced (see e.g. Gavrilenko v. Ukraine, no. 24596/02,
§§ 18-19, 20 September 2005). Accordingly, the Court
rejects the Government's preliminary objection.
2. Exhaustion of domestic remedies
- The Government further raised objections regarding
exhaustion of domestic remedies similar to those which the Court has
already dismissed in a number of similar cases concerning the
non-enforcement of the court judgments (see Sokur v. Ukraine
(dec.), no. 29439/02, 16 December 2003 and Trykhlib
v. Ukraine, Trykhlib v. Ukraine, no. 58312/00,
§§38-43, 20 September 2005). The Court considers that these
objections must be rejected for the same reasons.
3. Conclusion
- The
Court concludes that the applicant's complaints about the delay in
enforcement of the final judgments given in his favour 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 this part of the application inadmissible.
B. Merits
- In
their observations on the merits of the case, the Government
contended that there had been no violation of the applicant's
Convention rights.
- The
applicant disagreed.
- The
Court notes that the two judgments in the applicant's favour were not
enforced for four and a half years.
- The
Court 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 (see, for instance, Sokur v. Ukraine,
cited above, §§ 36-37 and Sharenok v. Ukraine,
no. 35087/02, §§ 37-38, 22 February 2005).
- 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 of
Article 1 of Protocol No. 1.
- The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1.
II. OTHER COMPLAINTS
- The applicant also complained under Article 14 of
the Convention that certain other litigants obtained higher awards in
similar cases and under Article 6 § 1 that the
conduct of the judicial authorities handling his requests for
re-opening of the proceedings was unlawful. Finally, the applicant
invoked Article 3 of the Convention to the facts of the present
case.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, insofar as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible 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 penalty interest, lost profits and various other
sums in respect of pecuniary damage. He did not specify the total
amount of his claim, although he presented intermediate calculations
under various heads, which appear to amount to several hundred
thousands euros. He also claimed UAH 1,000,000 (EUR 161,400)
in respect of non-pecuniary damage.
- The
Government contested these claims.
- Having
regard to the applicant's unclear submissions regarding the pecuniary
damage and to the fact that the judgments given in his favour have
been fully enforced, the Court rejects this claim. On the other hand,
the Court takes the view that the applicant must have 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 1,800
in this respect.
B. Costs and expenses
- The
applicant also claimed EUR 3,150 for the costs and expenses and
presented copies of phone and medical bills, receipts for typing,
copying, and postal services and other documents issued between 1996
and 2004.
- The
Government submitted that the applicant's claims were exorbitant and
unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
- The
Court considers that these requirements have not been met in the
instant case. It notes that the applicant's submissions do not
specify his costs incurred in connection with the violation found.
However, the applicant must have incurred some costs and expenses in
connection with his Convention complaints. Regard being had to the
information in its possession and to the above considerations, the
Court finds it reasonable to award the applicant EUR 50 for
costs and expenses (see e.g., Belanova v. Ukraine,
no. 1093/02, § 41, 29 November 2005).
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 concerning the delay in
enforcement of the judgments 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 Protocol No. 1 of the Convention;
- Holds that there is no need to examine the
complaint under 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
in accordance with Article 44 § 2 of the
Convention, EUR 1,850 (one thousand eight hundred fifty euros)
in respect of non-pecuniary damage and costs and expenses, 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
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 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
