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FIFTH
SECTION
CASE OF KRIVENKO v. UKRAINE
(Application
no. 19547/06)
JUDGMENT
STRASBOURG
15 October 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 Krivenko 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,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19547/06) 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 Nikolay Nikolayevich
Krivenko (“the applicant”), on 8 May 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 1963 and lives in the city of Ivano Frankivsk,
Ukraine.
- The applicant, a former military serviceman brought
proceedings against military unit A-3339, where he had served before
retirement, claiming compensation for his uniform. On 2 October 2003
the Ivano Frankivsk Court found for the applicant and awarded
him 2,393.62
Ukrainian hryvnias (UAH).
- On
13 November 2003 the Ivano-Frankivsk Bailiffs' Service initiated
enforcement proceedings.
- On
an unspecified date the above military unit was liquidated and the
judgment debt was transferred to its legal successor, military unit
A-1807.
- Following
this event the enforcement writ was transferred to the Yaremcha
Bailiffs' Service. On 11 February 2008 the latter instituted
enforcement proceedings in respect of the judgment.
- On
24 June 2008 the enforcement writ was returned to the applicant. The
judgment has not been enforced due to the debtor's lack of funds.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law is summarised in the
judgment of Romashov v. Ukraine (no. 67534/01, §§
16-18, 27 July 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 State authorities' failure to enforce
the judgment given in his favour in due time. He relied on 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
12. The Government submitted that Articles 6 § 1
was inapplicable to the proceedings at issue, as the dispute
concerned a military officer's career and therefore was not a “civil”
dispute for the purposes of the impugned Convention provision. They
further contested the applicability of Article 1 of Protocol No.
1 in the present case, stating that the uniform at issue was the
property of the State .The Government finally argued that the
applicant had failed to exhaust all domestic remedies available to
him under the law.
- The
applicant disagreed.
- The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (see Mitin v.
Ukraine, no. 38724/02, §§ 20-28, 14 February
2008). The Court considers that these
objections must be rejected in the instant case for the same reasons.
15. The
Court notes that the application 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
- In
their observations the Government contended that there had been no
violation of Articles 6 § 1 and 13 of the Convention or Article
1 of Protocol No. 1.
- The
applicant disagreed.
- The
Court notes that the judgment given in the applicant's favour has
remained unenforced for about five years and eight months.
- The
Court reiterates that it has already found violations of
Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in a substantial number of cases raising
issues similar to the present application (see, for example, Bondar
and Others v. Ukraine, no. 12380/05, §
13, 19 February 2009).
- Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
convincing 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.
- The
Court does not find it necessary in the circumstances to examine the
same complaint under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
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
- The applicant claimed Ukrainian
hryvnias 4,244.58
(UAH) and UAH 31,650
in respect of pecuniary damage. The first amount included the
unsettled court award plus UAH 1,850.96
in inflation losses. However, the applicant failed to present
detailed calculations of these losses. The applicant additionally
claimed UAH 35,000
in respect of non-pecuniary damage.
- The Government contested these claims. With respect to
the claims for inflation losses they submitted, inter alia,
that this claim should be rejected since the applicant failed to
provide detailed calculations.
- 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. It further dismisses the remainder of the applicant's
claim for pecuniary damage as unsubstantiated (see, a contrario,
Maksimikha v. Ukraine, no. 43483/02, § 29,
14 December 2006). 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 1,800 euros (EUR) in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 7,390
in legal costs. He furnished a receipt as evidence of payment made to
a law firm in respect of unspecified legal services. He further
claimed UAH 520
for postage expenses.
- The
Government contested these claims.
- 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
rejects the claim for legal costs and considers it reasonable to
award the sum of EUR 50 for postage expenses.
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 is no need to examine the
complaint under Article 13 of the Convention;
- Holds
a) that the respondent State is to pay, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention
the following sums:
(i) the outstanding debt under the
judgment of the Ivano-Frankivsk Court of 2 October 2003 in respect of
pecuniary damage;
(ii) EUR 1,800 (one thousand eight hundred euros) in
respect of non-pecuniary damage and EUR 50 (fifty euros) in respect
of 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 to the applicant;
(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 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
