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FIFTH
SECTION
CASE OF MARTYNCHUK v. UKRAINE
(Application
no. 38988/02)
JUDGMENT
STRASBOURG
10
April 2008
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 Martynchuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Karel Jungwiert,
Volodymyr
Butkevych,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 18 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38988/02) 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 Borys Andriyovych
Martynchuk (“the applicant”), on 7 October 2002.
- 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 complaint under
Article 6 § 1 concerning non-enforcement of the judgment
favourable to the applicant 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 was born in 1967 and lives in the village of
Khotyn, Rivne region, Ukraine.
- On
28 April 1996 the Bereznivsky District Prosecutor's Office
(Березнівська
районна прокуратура)
opened a criminal investigation into the murder of the applicant's
wife. On the same day the applicant was arrested.
- On
7 May 1996 the applicant was charged with the murder of his wife.
- The
applicant was released on 20 February 1997 subject to a written
undertaking not to abscond. On 31 March 1999 the Bereznivsky
District Prosecutor's Office dropped the charges against the
applicant on the ground of lack of evidence.
- On
31 January 2000 the Rivne Regional Court (Рівненський
обласний суд)
found Mr K. guilty of the murder concerned.
On 15 June 2000 the Supreme Court (Верховний
Суд України)
upheld the judgment of 31 January 2000. In a separate ruling, issued
on the same day, the Supreme Court informed the Prosecutor General
(Генерального
прокурора)
that there had been procedural irregularities in the criminal
proceedings against the applicant.
- The
applicant brought proceedings for compensation for unlawful criminal
prosecution. On 11 September 2001 the Bereznivsky District Court of
the Rivne Region (місцевий
суд Березнівського
району Рівненської
області,
hereafter “the Bereznivsky Court”)
granted this claim and awarded him 50,000
Ukrainian Hryvnias (UAH) against the State in compensation for moral
damage. The court judgment contained an instruction to the applicant
to present a copy of it to the local department of the State Treasury
(Державне
казначейство)
for enforcement. This judgment was not appealed against and became
final.
- According
to the Government the applicant did not comply with the above
instruction of the Bereznivsky Court.
- The
applicant stated that he did submit a copy of the judgment to the
State Treasury for enforcement. In support of this statement he
provided the Court with a copy of a letter of 27 September 2001 in
which the Bereznivsky District Department of the State Treasury
(Відділення
державного
казначейства
у Березнівському
районі Рівненської
області)
informed the Bereznivsky Court that the State Budget for 2001
did not include funds which could be used to pay the applicant.
- On
5 and 22 April 2005 respectively the Bereznivsky District Department
of the State Treasury sent copies of the judgment concerned to the
Bereznivsky District Bailiffs' Service (Відділ
державної
виконавчою
служби Беренівського
районного
управління
юстиції Рівненської
області)
and the Central Department of the Bailiffs' Service (Відділ
примусового
виконання
Департаменту
державної
виконавчої
служби),
stating that the lack of budget funds prevented it from honouring
this judgment and inviting the Bailiffs' Service to open enforcement
proceedings in its respect.
- On
16 May 2005 the Central Department of the Bailiffs' Service found
that a copy of the court judgment, without a writ of execution, was
an insufficient ground for initiating the enforcement proceedings.
- On
25 December 2006 the same department of the Bailiffs' Service refused
to accept the writ of execution issued by the Bereznivsky Court
because it did not contain the exact address of the State Treasury
and had been submitted by the applicant outside the three-year time
limit provided by law for compulsory execution.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of 29 June 2004
in the case of Voytenko v. Ukraine (no. 18966/02, §§
20-25).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained of the lengthy non-enforcement of the
Bereznivsky Court's judgment of 11 September 2001 in his favour. He
relied on Article 6 § 1 of the Convention which, in so far as
relevant, provides 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. ...”
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government maintained that the applicant had failed to exhaust
domestic remedies available to him. In particular, according to the
Government the applicant had not submitted the copy of the judgment
of 11 September 2001 to the local department of the State Treasury.
Nor did he apply, in accordance with the relevant formalities, to the
Bailiffs' Service to have proceedings instituted for compulsory
enforcement of this judgment.
- The
applicant disagreed.
- In
the absence of any evidence to the contrary from the Government, the
Court accepts the applicant's contention that the letter of
27 September 2001 from the State Treasury to the
Bereznivsky Court confirms that he complied with the instruction of
the Bereznivsky Court to submit a copy of the judgment of 11
September 2001 to the State Treasury (see paragraphs 11 and 12
above). As regards the applicant's alleged failure to apply for
compulsory enforcement of this judgment to the Bailiffs' Service, the
Court observes that even if it is true that the applicant had not
complied with relevant formalities, it is inappropriate to require an
individual who has obtained judgment against the State at the end of
legal proceedings to then bring enforcement proceedings to obtain
satisfaction (see, for example, Scordino v. Italy
(no. 1) [GC], no. 36813/97, §198, ECHR 2006 ...
and Lizanets v. Ukraine, no. 6725/03, § 43,
31 May 2007). It therefore rejects the Government's arguments.
2. The applicant's victim status
- The
Government argued that the applicant lost his status as a “victim”
within the meaning of Article 34 of the Convention because he
produced his writ of execution to the Bailiffs' Service outside the
three-year time limit provided by law.
- The
applicant disagreed.
- The Court recalls that the term “victim”
used in Article 34 denotes the person directly affected by the
act or omission which is at issue (see Eckle v. Germany,
judgment of 15 July 1982, Series A no. 51, p. 30, § 66). It
notes that the court judgment in the applicant's favour has not been
enforced to date. There is nothing to suggest that the applicant has
ceased to be affected by non-enforcement this judgment. This is the
more so since the failure to abide by this time limit does not
deprive the applicant of a right guaranteed by Article 6 § 1 to
have a court judgment issued against the State enforced in full (see
Lizanets, cited above, §§ 41-45). The Court,
therefore, rejects this objection.
3. Conclusion
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant claimed that the lengthy non-enforcement of a court
judgment in his favour infringed his rights guaranteed by Article 6 §
1 of the Convention.
- In
their observations, the Government contented that the delay in the
enforcement of the judgment of 11 September 2001 was caused by the
applicant's failure to apply in a timely manner for its compulsory
enforcement.
- The
Court, referring to its findings above (see paragraph 19), dismisses
the Government's argument. It further notes that at least until April
2005 the judgment remained unenforced because of the lack budgetary
funds and not because of the applicant's alleged failure to act.
- The
Court further notes that on 11 September 2001 the Bereznivsky Court
awarded the applicant UAH 50,000 against the State. This award has
not been paid to date, i.e. for six years and four months.
- The
Court recalls that it has already found violations of Article 6
of the Convention in cases raising issues similar to the present
application (see, for example Voytenko, cited above, §§
53-55 and Vodopyanovy v. Ukraine, no. 22214/02, §§
31-36, 17 January 2006).
- 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, also been a violation of Article 6 § 1 of the
Convention in this respect.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained in general under Article 5 of the Convention
that his detention had been unlawful. The applicant maintained that
he had had to enter into a written undertaking not to abscond, which
violated his right to freedom of movement. He relied on Article 2 of
Protocol No. 4. He further complained that his detention had led to a
deterioration of his health and had placed his life at risk. He
invoked Article 2 of the Convention. He also complained under Article
8 of the Convention that the criminal proceedings brought against him
had affected his private and family life.
- The
Court notes that the applicant was released on 20 February 1997,
before the Convention entered into force in respect of Ukraine, and
that the charges against him were dropped on 31 March 1999, more than
six months before the application was introduced. In the light of all
the material before it and in so far as these remaining complaints
fall within its competence, it finds that they do not disclose any
appearance of an unjustified interference or breach of these
provisions and rejects this part of the application in accordance
with Article 35 §§ 3 and 4 of the Convention as being
manifestly ill-founded.
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 a global sum of 1,000,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
- The
Government considered this claim unsubstantiated and exorbitant.
- In so far as the judgment in the applicant's
favour has not been paid, the Court, referring to its findings above
(paragraphs 29) considers that the full and final settlement of the
applicant's claim for pecuniary damage would be the payment of the
judgment debt owed to him (see paragraph 9 above).
- As
regards the applicant's claim for non-pecuniary damage, the Court,
making its assessment on an equitable basis, as required by
Article 41 of the Convention, considers it reasonable to award
the applicant a global sum of EUR 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants did not submit any claim under this head within the set
time-limit; the Court therefore makes no award in this respect.
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 Article 6 §
1 of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 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 judgment
debt still owed to him, as well as EUR 2,000 (two thousand
euros) in respect of non-pecuniary damage, 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 10 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
