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FIFTH
SECTION
CASE OF SOLONSKIY v. UKRAINE
(Application
no. 39760/05)
JUDGMENT
STRASBOURG
30 July
2009
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 Solonskiy v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva,
judges,
Stanislav Shevchuk, ad hoc judge,
and
Stephen Phillips, Deputy Section
Registrar.
Having deliberated in private on 7 July
2009,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39760/05) 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 Pyotr Yakovlevich
Solonskiy (“the applicant”), on 20 October 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
30 April 2007 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1938 and lives in the town of Gorlovka.
- In
July 1995 the applicant instituted proceedings in the
Tsentralno-gorodskoy District Court of Gorlovka (“the court”)
against his former employer, a State company “Kommunalnik”
(“the company”), claiming compensation for damages
resulting from his work-related disease.
- On
29 December 1998 the court awarded the applicant
UAH 44,273.27.
By the same judgment he was entitled to receive an allowance of UAH
372.24, to be paid monthly. On 5 February 1999 the Gorlovka
Bailiffs’ Service (“the Bailiffs’ Service”)
initiated enforcement proceedings.
- On
10 October 2000 the judgment was enforced in part; the
applicant received UAH 127.12.
- In
March 2002 the applicant instituted proceedings in the court against
the company and the State Insurance Fund for Work Accidents and
Work-Related Diseases (“the Fund”) seeking re-calculation
of the monthly allowance paid to him for his work-related disability
and claiming payment of losses sustained on account of the erroneous
calculation.
- On
11 April 2002 the court allowed the applicant’s
claims and ordered the company to pay the applicant UAH 30,645.53.
By the same judgment he was entitled to receive a monthly allowance
of UAH 737.04, to be paid by the Fund as from 1 April 2001. On
30 May 2002 the Bailiffs’ Service initiated
enforcement proceedings.
- In
November 2005 the applicant instituted court proceedings against the
Bailiffs’ Service seeking compensation for damages caused to
him by the non-enforcement of the judgments. On 29 December 2005 the
court found against the applicant. On 27 April 2006 the Donetsk
Regional Court of Appeal upheld this judgment. The applicant did not
appeal in cassation.
- On
13 March 2008 the Bailiffs’ Service returned the enforcement
writs in respect of the judgments of 29 December 1998 and 11 April
2002 to the applicant.
- The
company failed to enforce the judgments of 29 December
1998 and 11 April 2002 in full. The Fund has no
judgment debts vis-à-vis the applicant.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law is summarised in the
judgment of Romashov v. Ukraine (no.
67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about the non-enforcement of the
judgments of 29 December 1998 and 11 April 2002. The above
provisions provide, in so far 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.....”
A. Admissibility
- The Government contended that the applicant had not
exhausted domestic remedies as he had not challenged the action taken
by the Bailiffs’ Service on 13 March 2008. They also maintained
that the applicant had failed to re-lodge the enforcement writs. They
asserted in this regard that the applicant was no longer interested
in enforcement of the judgments in question.
- The
applicant disagreed.
- The Court notes that similar
objections have already been rejected in a number of judgments
adopted by the Court (see Sychev v.
Ukraine, no. 4773/02, §§ 42-46,
11 October 2005; and Lizanets v. Ukraine,
no. 6725/03, § 43, 31 May 2007). The
Court considers that these objections must be rejected in the instant
case for the same reasons.
- The
Court 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.
B. Merits
- In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in the applicant’s
respect. They further maintained that the State authorities had taken
all necessary measures to enforce the judgments in question.
- The
applicant disagreed.
- The
Court observes that the judgments of 29 December 1998
and 11 April 2002 remain
unenforced.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention in cases
raising similar issues to the ones in the present case (see Romashov
v. Ukraine, cited above, § 46, and Voytenko v. Ukraine,
no. 18966/02, §§ 43 and 55).
- 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 Article 1 of Protocol No.1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
WITH RESPECT TO THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant further complained under Article 6 § 1 of
the Convention about the outcome of the proceedings in his case
against the Bailiffs’ Service.
- The Court notes that the
applicant failed to appeal in cassation against the judgment of 29
December 2005 and the ruling of 27 April 2006 (see Vorobyeva
v. Ukraine (dec.), no. 27517/02, 17 December 2002).
- It
follows that this part of the application must be declared
inadmissible for non-exhaustion of domestic remedies, pursuant to
Article 35 §§ 1 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 74,918.80 (about EUR 6,981) in respect of
pecuniary damage. He requested the Court to adjust this amount in
order to take into account inflation rates. The applicant did not
provide any calculations of the inflation losses and did not submit
any official document in that respect. He further claimed UAH
75,000 (about EUR 7,000) in respect of non-pecuniary damage.
- The
Government contested these claims as unsubstantiated and exorbitant.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgments of 29 December 1998
and 11 April 2002. However, the Court does not discern any causal
link between the violation found and the remainder of the pecuniary
damage alleged; it therefore rejects this claim. The Court further
takes the view that the applicant must have sustained non-pecuniary
damage as a result of the violation found. Making its assessment on
an equitable basis, as required by Article 41 of the Convention,
the Court awards the applicant EUR 2,600 under this head.
B. Costs and expenses
- The
applicant, who was not represented before the Court, claimed UAH
3,700 (about EUR 345) for legal costs incurred before it.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 200 under this head.
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 complaints concerning the
non-enforcement of the judgments admissible and the complaint under
Article 6 § 1 of the Convention about the unfairness of the
proceedings against the Bailiffs’ Service 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 to 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 debts still owed to the applicant under the
judgments of the Tsentralno-gorodskoy District Court of
Gorlovka of 29 December 1998 and 11 April 2002 in respect of
pecuniary damage as well as EUR 2,600 (two
thousand six hundred euros) in respect of non-pecuniary damage, and
EUR 200 (two hundred euros) for costs and expenses, plus any tax
that may be chargeable to the applicant, to be converted into the
national currency of the respondent State at the rate applicable at
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 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
