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FIFTH
SECTION
CASE OF KRYSHCHUK v. UKRAINE
(Application
no. 1811/06)
JUDGMENT
STRASBOURG
19 February 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 Kryshchuk v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
Zdravka
Kalaydjieva,
judges,
Stanislav
Shevchuk, ad
hoc judge
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1811/06) 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 Anton Ivanovych
Kryshchuk (“the applicant”), on 22 December 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
13 December 2006 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 1959 and lives in the town of Chervonograd,
Lviv Region, Ukraine.
- In
2003 the applicant instituted proceedings in the Chervonograd Town
Court against the Lvivvugillya State Enterprise, seeking compensation
for non-pecuniary damage caused by the failure of the defendant to
provide the applicant with an apartment, to which he had been
entitled according to an agreement between them.
- On
10 November 2003 the court partly found for the applicant and ordered
the defendant to pay the applicant 42,000 Ukrainian hryvnias
in compensation.
- That
judgment became final and on 11 December 2003 the Chervonograd
Town Bailiffs' Service instituted enforcement proceedings.
- On 30 December 2005 the enforcement proceedings were
terminated in accordance with the 2005 Law of Ukraine “On
Measures to Ensure the Stable Operation of Fuel and Energy Sector
Enterprises”.
- The
judgment in the applicant's favour remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
Law of 23 June 2005 “On Measures to Ensure the Stable Operation
of Fuel and Energy Sector Enterprises” (Закон
України „Про
заходи, спрямовані
на забезпечення
сталого функціонування
підприємств
паливно-енергетичного
комплексу”
від 23 червня
2005 року) introduced a new
mechanism for payment and amortisation of companies' debts for energy
resources. It also introduced a special register of companies
involved in debt payment and amortisation under its provisions. A
company's presence on that register suspends any enforcement
proceedings against it; domestic courts shall also dismiss any
request to initiate insolvency or liquidation proceedings against the
company. By the most recent amendments to the Law, the effect of the
debt payment and amortisation program was extended until 1 January
2009.
- The
remainder of the relevant law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April
2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about the lengthy non-enforcement of the
judgment of 10 November 2003 and the lack of 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 ... hearing within a
reasonable time by [a] ... tribunal ...”
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.
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 did not submit any observations on the admissibility of
the application.
- 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 on the merits the Government advanced the
arguments they have frequently put forward in cases like the present
one (see, for example, the Sokur
judgment, cited above, § 28).
- The
applicant asked the Court to find violations of the invoked Articles.
- The
Court recalls that it has already found violations of Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
in cases like the present application (see the Sokur
judgment, cited above, §§ 30-37; Shmalko
v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004;
and Voytenko v. Ukraine, no. 18966/02, §§
46-48, 29 June 2004).
- 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 in respect of the
lengthy non-enforcement of the judgment in the applicant's favour in
the present application.
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 that he had incurred inflation losses as a result
of the lengthy non-enforcement of the judgment in his favour. He did
not, however, indicate the sums.
- The
Government did not comment on this claim.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment at issue. 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).
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award in this connection.
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
13 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to 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 outstanding
debt under the judgment of 10 November 2003;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 19 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
