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FIFTH
SECTION
CASE OF SAVINSKIY AND SHEVCHENKO v. UKRAINE
(Applications
nos. 34168/05 and 45750/07)
JUDGMENT
STRASBOURG
19
November 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 Savinskiy and
Shevchenko 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,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 34168/05 and 45750/07)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Anatoliy Fyodorovich Savinskiy and Mr Oleksandr Igorovych
Shevchenko (“the applicants”), on 1 September 2005
and 22 September 2007 respectively.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
12 December 2007 and 15 October 2008 the President of the Fifth
Section decided to give notice of the applications to the Government.
It was also decided to examine the merits of the applications at the
same time as their admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1939 and 1957 respectively and live in
Pavlograd and Slovyansk, Ukraine.
- By
a judgment of 7 June 2001 the Pavlograd Town Court
(Павлоградський
міський суд)
awarded Mr Savinskiy 6,376.66 Ukrainian hryvnias
(UAH)
in salary arrears and other payments to be paid by his former
employer, the State company Pershotravenskoye shakhtostroyitelnoye
upravleniye-4.
- By a judgment of 24 December 1997 the Slovyansk Town
Court (Павлоградський
міський суд)
awarded Mr Shevchenko UAH 1,829.89
in salary arrears to be paid by his
former employer, the Soda Plant (ВАТ «Содовий
завод»), a joint stock
company in which the State holds at least 25% of the share capital.
By a judgment of 17 July 2000 the same court additionally ordered the
debtor company to pay Mr Shevchenko UAH 7,173.09
in payments owed to him upon retirement.
- After
the above judgments had become final, the relevant departments of the
State Bailiffs’ Service instituted proceedings to enforce them.
- Subsequently,
the insolvency and later the liquidation proceedings against the
debtor companies were instituted and the State Bailiffs’
Service terminated the enforcement proceedings. The above-mentioned
liquidation proceedings are apparently still pending.
- The
judgments in the applicants’ favour remain unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the judgment of 26 April 2005 in
the case of Sokur v. Ukraine (no. 29439/02, §§ 17-22).
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common factual
and legal background.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained that by failing to enforce the judgments in
their favour the State authorities had breached Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1, which read, 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.
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 ....”
A. Admissibility
- The Government submitted that the applicants had
failed to exhaust domestic remedies as required by Article 35 § 1
of the Convention. In particular, they maintained that the applicants
had not availed themselves of the opportunity to be registered as
creditors in the insolvency and liquidation proceedings pending
against the debtor companies, and had failed to challenge the
liquidation commission’s inactivity before the relevant
commercial court or apply to any domestic court against the Bailiffs’
Service to challenge the allegedly inadequate enforcement of the
judgments in their favour.
- The
Court points out that similar objections have already been rejected
in a number of cases previously examined 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 these
objections must be rejected in the instant case for the same reasons.
- The
Court notes that the applications 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 advanced the standard arguments they put forward in cases
concerning the lengthy non-enforcement of domestic court judgments
and concluded that there had been no violation of Article 6 § 1
of the Convention or Article 1 of Protocol No. 1.
- The
applicants disagreed.
- The
Court notes that the judgments in the applicants’ favour
remained unenforced for at least eight years and two 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 cases like the present applications (see,
among other authorities, Voytenko v. Ukraine, no. 18966/02,
§§ 43 and 55, 29 June 2004).
- Having
examined all the materials 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 a violation of Article 1 of Protocol No. 1
in respect of the lengthy non-enforcement of the judgments in the
applicants’ favour.
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
- Mr Savinskiy
failed to submit his claims for just satisfaction in time.
- Mr Shevchenko
claimed the outstanding debts under the judgments in his favour and
EUR 7,360.96 in respect of non-pecuniary damage.
- The
Government contested the claim in respect of non-pecuniary damage as
excessive and unsubstantiated.
- The
Court makes no award in respect of Mr Savinskiy. It notes,
however, that it is undisputed that the State still has an
outstanding obligation to enforce the judgments at issue. It further
awards Mr Shevchenko, on an equitable
basis, EUR 2,600 in respect of non-pecuniary damage.
B. 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
- Decides to join the applications;
- Declares the applications 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 Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention:
(i) the
outstanding debts under the judgments given in the applicants’
favour;
(ii) EUR
2,600 (two thousand six hundred euros) in respect of non-pecuniary
damage to Mr Shevchenko, 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 Mr Shevchenko’s
claim for just satisfaction.
Done in English, and notified in writing on 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
