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FIFTH
SECTION
CASE OF KISLINSKIY v. UKRAINE
(Application
no. 37039/03)
JUDGMENT
STRASBOURG
15 May
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
Kislinskiy 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 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37039/03) 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 Mikhaylovich
Kislinskiy (“the applicant”), on 16 October 2003.
- The
Ukrainian Government (“the Government”) were represented
by theirs Agent, Mrs Zoryana Bortnovska and Mr Yuriy Zaytsev.
- On
9 September 2004 and on 11 January 2006 the Court decided to
communicate to the Government the complaints under Article 6 § 1
of the Convention and Article 1 of the Protocol No.1 concerning
the non-enforcement of a final court judgment given in the
applicant's favour. 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1930 and lives in the town of Novogrodivka, the
Donetsk Region.
- On
30 June 1998 the Novogrodivka City Court (hereafter “the City
Court”) awarded the applicant UAH 2,550
against the Rosiya coal-mine (a State-owned enterprise) by way of
compensation for delays in the payment of his occupational disease
benefits. On 10 July 1998 the judgment became final and was sent to
the Novogrodovka City Bailiffs' Service (hereafter “the
Bailiffs”) for compulsory enforcement.
- On 20 February 2003 the City Court rejected the
applicant's further claim against the same coal-mine in December
2002. On 5 May 2003 the Donetsk Regional Court of Appeal upheld this
decision. On 21 Mai 2004 the Supreme Court of Ukraine rejected the
applicant's request for leave to appeal in cassation.
- In
early 2004 the applicant complained to the City Court about the
Bailiffs' alleged inactivity. On 30 April 2004 the City Court
rejected the applicant's complaint stating, inter alia, that
no fault was attributable to the Bailiffs, who had undertaken all
necessary measures to secure the execution of the June 1998 judgment,
and that its non-enforcement was due to the moratorium on the forced
sale of the property of State-owned enterprises. The City Court also
indicated that the enforcement proceedings were further impeded by
the decision of 25 February 2003 of the Ministry of Fuel and
Energy (which controlled 100% of the Rosiya coal-mine) to wind up the
enterprise and to transfer its assets to the Selidovvugillya State
Company. The latter entity was designated as the judgment debtor by
decision of the City Court of 12 December 2003.
- On
25 November 2004 the enforcement proceedings were terminated as the
judgment in the applicant's favour had been enforced in full.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOLE No. 1
- The
applicant complained of the failure of the State authorities to
execute the judgment of 30 June 1999 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
“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.”
A. Admissibility of the complaints
- The
Government submitted that the applicant could no longer be considered
a victim for the purposes of Article 34 of the Convention, as the
judgment had been enforced.
- The
applicant disagreed, stating that the decisions had remained
unenforced for an unreasonably long time.
- The Court recalls its case-law to the effect that,
whilst the execution of the decision given in the applicant's favour
redressed the non-execution as such, it could not in itself remedy
the undue length of the enforcement procedure (see, Romashov v.
Ukraine, no. 67534/01, 27 July 2004 and Sokur v. Ukraine,
no. 29439/02, § 27, 26 April 2005). The Court considers,
therefore, that the applicant may still claim to be a victim of an
alleged violation of the rights guaranteed by Article 6 § 1 and
Article 1 of Protocol No. 1 in relation to the period
during which the judgment in his favour remained unexecuted.
- The
Court considers, therefore, that these complaints 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.
B. Merits
- In
their observations, the Government contended that there had been no
violation of the above provisions of the Convention in the
applicant's respect.
- The
applicant disagreed.
- The
Court notes that the judgment given in the applicant's favour
remained unenforced for six years and four months.
- The Court recalls that it has already found violation
of Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 in a number of similar cases (see, for instance,
Romashov v. Ukraine, cited above, § 46; Dubenko v.
Ukraine, no. 74221/01, §§ 47 and 51, 11
January 2005; Vasilenkov v. Ukraine, no. 19872/02, §§
24-26, 3 May 2005).
- Having
examined all the materials 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Additionally,
the applicant complained that the existing situation infringed his
right to life under Article 2 § 1 of the Convention, given
his low standard of living, the lack of adequate medical treatment
and severe environmental nuisance arising from the industrial
activities in the Donetsk Region. The applicant complained under
Article 6 § 1 about the unfavourable outcome of the second set
of proceedings instituted against the coal-mine. He also invoked
Article 14 of the Convention.
- Having
regard to all the material in its possession, the Court finds that
these complaints do 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 and costs
- The
applicant claimed EUR 2,035 in respect of pecuniary damage, EUR
10,390 in compensation for inflation, EUR 7,673 in occupational
disease benefits and EUR 6, 500 in respect of non-pecuniary
damage. He also claimed EUR 30 for costs and expenses incurred before
the Court.
- The
Government did not object to the pecuniary damage claim, but
considered the remainder of the applicant's claims exorbitant and
exaggerated.
- Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court considers it reasonable to award the
applicant a global sum of EUR 4,000 in respect of pecuniary and
non-pecuniary damage, costs and expenses.
B. 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 complaints under Article 6 § 1
of the Convention and Article 1 of the Protocol No. 1 concerning
the non-enforcement of a final court judgment given in the
applicant's favour admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and 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 4,000 (four thousand euros) in respect of
pecuniary and non-pecuniary damage, 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 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 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
