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FIFTH
SECTION
CASE OF SHVENTKOVSKIY v. UKRAINE
(Application
no. 27589/05)
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 Shventkovskiy 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,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
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. 27589/05) 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 Victor Vladimirovich
Shventkovskiy (“the applicant”), on 19 July 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
30 April 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 1949 and lives in the city of Kharkiv, Ukraine.
- On
19 March 2004 the Moskovskiy District Court of Kharkiv
(“the court”) partly allowed the applicant’s claims
and awarded him 4,643.42 Ukrainian hryvnyas (UAH)
in salary arrears and compensation for loss of earnings, to be paid
by the State-controlled company “Serp i molot”.
- The applicant did not appeal
against this decision under the ordinary appeal procedure, but on
3 February 2005 he lodged a cassation appeal against it. On
4 February 2005 the court returned the applicant’s
cassation appeal since the relevant decision had not been appealed
under the ordinary appeal procedure.
- The applicant states that he
received the ruling of 4 February 2005 when the time-limit
for lodging an appeal against it had already expired. The applicant
did not provide this Court with any document certifying that he had
requested the domestic courts to renew the time-limit for lodging an
appeal against the ruling of 4 February 2005.
- On 31 August 2004 the
Moskovskiy District Bailiffs’ Service of Kharkiv initiated
enforcement proceedings in respect of the judgment of 19 March 2004.
- Following insolvency and
liquidation proceedings instituted against the company, on 10 October
2007 the latter was closed down and removed from the relevant
enterprises’ register.
- In 2007 the applicant received
UAH 163.71. The remainder of the judgment has not been enforced.
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 ARTICLE 6 § 1 OF THE
CONVENTION
- Relying
on Article 17 the applicant complained about the non-enforcement of
the judgment given in his favour. The Court will consider this
complaint under Article 6 § 1 of the Convention, which
reads 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
- 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 not
availed himself of the opportunity to be registered as a creditor in
the insolvency proceedings pending against the debtor company, and
had failed to apply to any domestic court against the Bailiffs’
Service to challenge the allegedly inadequate enforcement of the
judgment.
- The
applicant disagreed.
- 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 Trykhlib v. Ukraine, no. 58312/00,
§§ 38-43, 20 September 2005). The Court
considers that this objection must be rejected in the instant case
for the same reasons.
B. Merits
- In
their observations, the Government contended that there had been no
violation of Article 6 § 1 of the Convention.
- The
applicant disagreed.
- The
Court notes that the judgment in the applicant’s favour has
remained unenforced for five years.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising a similar issue to the one in the present
case (see Chechin v. Ukraine, no. 6323/03, § 17,
15 May 2008; Romashov,
cited above, § 46, and Voytenko,
cited above,
§ 43).
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
22. The applicant further complained under Article 6 of the
Convention that the proceedings in his case had been unfair. Relying
on Article 13 of the Convention, the applicant complained that he had
had no access to the court of appeal and the court of cassation. He
finally invoked Article 1 of the Convention, referring to the same
facts.
23. Having carefully examined the
applicant’s submissions in the light of all the material in its
possession, and in so far as the matters complained of are
within its competence, the Court finds that 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 EUR 50,000 in respect of pecuniary and
non-pecuniary damage.
- The
Government contested these claims as unsubstantiated.
- The
Court finds that the Government should pay the applicant the
outstanding debt under the judgment given in his favour by way of
compensation for pecuniary damage. Otherwise, it does not discern any
causal link between the violation found and the pecuniary damage
alleged; it therefore rejects the remainder of the applicant’s
claim in that respect. On the other hand, ruling on an equitable
basis, the Court finds it reasonable to award the applicant EUR 1,600
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no separate claim as to costs and expenses. Therefore,
the Court makes no award under that 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 complaint concerning the
non-enforcement of the 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;
- 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 debt still
owed to the applicant under the judgment of the Moskovskiy District
Court of Kharkiv of 19 March 2004 in respect of pecuniary
damage, as well as EUR 1,600 (one thousand six hundred euros),
in respect of non-pecuniary damage, plus any tax that may be
chargeable, 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
