BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SEMENOVYCH v. UKRAINE
(Application
no. 9480/06)
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 Semenovych v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
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. 9480/06) 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 Sergiy Sergiyovych
Semenovych (“the applicant”), on 27 February 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
20 May 2008 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 1944 and lives in the town of Chervonograd,
Ukraine.
- On
17 September 2003 the Chervonograd Court awarded the applicant
34,041.65 Ukrainian hryvnas (about EUR 5,887) in salary arrears and
other sums, to be paid by the State company Chervonogradske
girnichomontazhne upravlinnya.
- The
judgment became final and enforcement proceedings were instituted.
- On 25 June 2007 the Bailiffs’ Service returned
the writ of enforcement to the applicant since there was a tax lien
over the company’s property and it was therefore not possible
to attach it. The applicant did not challenge this decision before
the domestic courts; nor did he relodge the writ of execution with
the Bailiffs’ Service.
- The
judgment in the applicant’s favour remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine, no. 67534/01, §§
16-19, 27 July 2004, and Voytenko v.
Ukraine, no. 18966/02,
§§ 20-25, 29 June 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1
TO THE CONVENTION
- The
applicant complained about the non-enforcement of the judgment given
in his favour and the lack of an effective remedy in that respect. He
invoked Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1, which 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 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...”
A. Admissibility
- The Government submitted that the applicant had failed
to exhaust domestic remedies as required by Article 35 § 1
of the Convention. In particular, they maintained that he had failed
to complain to any domestic court about the Bailiffs’ Service’s
allegedly inadequate attempts to enforce the judgment in his favour.
They further alleged that the applicant had failed to re-submit the
writ of execution.
- The Court notes that similar objections have already
been rejected in a number of judgments adopted by the Court (see
Sokur v. Ukraine (dec.), no. 29439/02,
16 December 2003; Sychev v. Ukraine,
no. 4773/02, §§ 42-46, 11 October 2005; and
Kolosenko v. Ukraine, no. 40200/02, §§ 12-15, 26 April
2007). The Court considers that this objection must be rejected in
the instant case for the same reasons.
- The Court notes that the
applicant’s 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 on the merits the Government advanced the
arguments they have frequently put forward in cases like the present
one (see, for example, the Romashov judgment, cited above,
§ 37).
- The
applicant disagreed.
- The
Court has frequently found violations of Articles 6 § 1 and 13
of the Convention and Article 1 of Protocol No. 1 to the Convention
in cases raising similar issues to those in the present case (see
Romashov v. Ukraine,
cited above, § 46, and Voytenko
v. Ukraine, cited above, §§
43, 48 and 55).
- 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, been a violation of Articles 6 § 1
and 13 of the Convention and a violation of Article 1 of
Protocol No. 1.
II. 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
- In
respect of pecuniary damage, the applicant claimed payment of the
debt still owed to him under the judgment that
had been given in his favour. He further claimed EUR 20,000 in
respect of non-pecuniary damage.
- The
Government noted that the applicant’s
right to have the judgment given in his favour executed had
never been contested. They contested the applicant’s
claim in respect of non-pecuniary damage.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment given in the
applicant’s favour. It 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 1,800 under this head.
B. Costs and expenses
- The
applicant lodged no claim under this head, 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 application admissible;
- 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 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 in
accordance with Article 44 § 2 of the Convention,
the judgment debt still owed to the applicant for pecuniary damage,
as well as EUR 1,800 (one thousand eight hundred 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
6. 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
