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FIFTH
SECTION
CASE OF KRASOVSKIY v. UKRAINE
(Application
no. 36772/04)
JUDGMENT
STRASBOURG
12 March 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 Krasovskiy v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36772/04) 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 Vladimir Petrovich
Krasovskiy (“the applicant”), on 1 October 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev
- On
6 December 2007 the Court decided to give notice of the application
to the Government. It 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, Mr Vladimir Petrovich Krasovskiy, is a Ukrainian
national who was born in 1942 and lives in the town of
Dniprodzerzhynsk, Ukraine.
A. Enforcement of the judgment of 28 October 2003.
- On
28 October 2003 the Dniprovsky District Court of
Dniprodzerzhynsk awarded the applicant
2,199 Ukrainian hryvnas (UAH) in salary arrears and UAH 2,743.29 in
other payments, to be paid by the open joint stock company Dniprovsky
Mineral Fertilizers Plant (“the debtor”).
- On
4 November 2003 the Bagliysky District Bailiffs' Service of
Dniprodzerzhynsk initiated enforcement proceedings.
- On
25 October 2004 the debtor paid the applicant UAH 2,199 in salary
arrears.
- On
unspecified date the debtor paid the applicant UAH 106,19.
- On
7 April 2004 the Dnipropetrovsk Regional Commercial Court initiated
bankruptcy proceedings against the debtor.
- By a letter of 22 December 2005, the
bailiffs notified the applicant that they were unable to collect the
full amount of the award, referring to the fact that financial assets
of the debtor were insufficient. They further explained that other
assets could not be sold, as the State owned 40 % of the
debtor's share capital. The debtor was therefore subject to the Law
of 29 November 2001 “on the Introduction of a
Moratorium on the Forced Sale of Property”.
- The
judgment remains partly unenforced.
B. Civil proceedings concerning payment of UAH 4,775.90
- On
an unspecified date the applicant instituted proceedings against the
debtor in the Dniprovsky District Court of Dniprodzerzhynsk claiming
payment of UAH 4,775.90.
- On
16 December 2004 the court found against the applicant.
- On
17 February 2005 the Dnipropetrovsk Regional Court of Appeal upheld
this judgment. On 20 July 2007 the Court of Appeal of the Autonomous
Republic of Crimea dismissed the applicant's appeal in cassation.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of
Sokur v. Ukraine (no. 29439/02, § 17-22,
26 April 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE
CONVENTION
- The
applicant complained about the non-enforcement of the judgment of
28 October 2003. He relied on 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 raised objections regarding admissibility ratione
personae similar to those already dismissed in a number of
similar cases (see, for instance, Skubenko v. Ukraine (dec.),
no. 41152/98, 6 April 2004). The Court considers that these
objections must be rejected for the same reasons.
- The
Court concludes that the application raises issues of fact and law
under the Convention, the determination of which requires an
examination on the merits. The Court finds no grounds for declaring
it inadmissible. The Court must therefore declare it admissible.
B. Merits
- In
their observations on the merits of the applicant's complaint, the
Government contended that there had been no violation of
Article 6 § 1.
- The
applicant disagreed.
- The
Court notes that the judgment of 28 October 2003 was
enforced only in part.
- The
Court observes that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see Sokur v.
Ukraine, cited above, § 37, and Lapinskaya v. Ukraine,
no. 10722/03, § 22, 18 January 2007)
- 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
- The
applicant complained under Articles 6 § 1 of the Convention
about the outcome of the proceedings in his case concerning payment
of UAH 4,775.90.
- The Court, in the light of all material before it and
in so far as these remaining complaints fall within its competence,
finds that they do not disclose any appearance of a breach of this
provision and rejects this part of the application in accordance with
Article 35 §§ 3 and 4 of the Convention as being
manifestly ill-founded.
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 2,000 euros (EUR) in respect of non-pecuniary
damage and UAH 7,413 (around EUR 801.42) in respect of pecuniary
damage.
- The
Government contested the applicant's claims.
- The
Court notes that, as the judgment given in favour of the applicant
remains unenforced, the Government should pay the applicant the
outstanding debt in order to satisfy his claim 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 claims under this head.
- The
Court further takes the view that the applicant has suffered some
non-pecuniary damage as a result of the violation found. The Court
finds it reasonable, ruling on an equitable basis, to award the
applicant EUR 1,600 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award.
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 under Article 6 § 1
of the Convention concerning the non-enforcement of the judgment 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 judgment
debt still due to the applicant on the date of the Court's judgment,
as well as EUR 1,600 (one thousand six hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage, 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 of 12
March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
