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FIFTH
SECTION
CASE OF GVOZDETSKIY v. UKRAINE
(Application
no. 28070/04)
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 Gvozdetskiy 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,
Zdravka Kalaydjieva, 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. 28070/04) 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 Aleksandr Ivanovich
Gvozdetskiy (“the applicant”), on 3 July 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev
- On
22 October 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 1954 and lives in the town of Starokostantiniv,
Ukraine.
- The
applicant is a former military serviceman. In November 1999 he was
transferred to the reserve force.
- On
21 April 2000 the Starokostantiniv Court ordered military unit A-2502
to pay the applicant UAH 1,151.2
in compensation for uniform expenses.
- On
5 May 2000 the Starokostantiniv Bailiffs' Service instituted
enforcement proceedings.
- In
December 2003 the Bailiff's Service informed the applicant that the
military unit was unable to enforce the judgment of 21 April 2000
because it did not have the necessary funds.
- The
judgment remains unenforced.
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 ARTICLE 1 OF PROTOCOL No.1 AND
ARTICLE 13 OF 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 connection.
He invoked Article 1 of Protocol No. 1 and Article 13 of the
Convention, which provide, in so far as relevant, as follows:
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 ... ”
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.”
A. Admissibility
-
The Government submitted that the applicant's complaint under Article
1 of Protocol No. 1 should be declared inadmissible since no
complaint about non-enforcement has been raised under Article 6 §
1 of the Convention and no violation of Article 6 § 1
in that respect has been found by the Court. They further alleged
that Article 13 of the Convention was inapplicable since no issue
arose under Article 1 of Protocol No. 1.
- The
applicant disagreed.
- The
Court refers to its case-law that the impossibility for an applicant
to obtain the execution of a judgment in his or her favour
constitutes an interference with the right to the peaceful enjoyment
of possessions, as set out in the first sentence of the first
paragraph of Article 1 of Protocol No. 1 (see, among other
authorities, Burdov v. Russia, no. 59498/00, § 40,
ECHR 2002-III, and Jasiūnienė v. Lithuania,
no. 41510/98, § 45, 6 March 2003). Therefore, the
Court dismisses the Government's objections.
- 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
- The
Government made no observation on the merits of the case.
- The
applicant submitted that the judgment was not enforced.
- The
Court notes that the judgment given in the applicant's favour has
remained unenforced for more than eight years and three months.
- The
Court reiterates that it has already found violations of Article 1 of
Protocol No. 1 and Article 13 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, and Lozynskyy and Others v. Ukraine,
no. 28562/02, §§ 25 and 28, 6 September 2007).
- 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 1 of Protocol No. 1 and
Article 13 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 17
OF THE CONVENTION
- The
applicant finally invoked Article 17 of the Convention, referring to
the above facts.
- Having regard to all the material in its possession,
and in so far as this complaint falls within its competence, the
Court finds that it does not
disclose any appearance of a violation of Article 17 of the
Convention. It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account. The Court, however, notes
that it is undisputed that the State still has an outstanding
obligation to enforce the judgment at issue. Accordingly, the
applicant remains entitled to recover the principal amount of the
debt awarded to him in the course of the domestic proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
non-enforcement and lack of an effective remedy admissible and the
complaint under Article 17 inadmissible;
- 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.
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
