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FIFTH
SECTION
CASE OF GARASHCHENKO v. UKRAINE
(Application
no. 26873/05)
JUDGMENT
STRASBOURG
16 April
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 Garashchenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 24 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26873/05) 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 Valentyn Mykolayovych
Garashchenko (“the applicant”), on 21 June 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
7 September 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 1952 and lives in Cherkasy, Ukraine.
- The
applicant is a lawyer. In 1998 he provided a private company, “D.”,
with legal assistance according to an agreement between them;
however, the latter failed to pay for the services.
- By
judgments of 14 July 2000 and 26 October 2000 the Cherkasy Regional
Arbitration Court (after June 2001 – the Cherkassy Regional
Commercial Court) ordered the company “D.” to pay
the applicant 308,332.67 Ukrainian hryvnias (UAH).
- Those
judgments became final and on 24 November and 4 December 2000 the
State Bailiffs' Service (hereafter “the Bailiffs' Service”)
instituted enforcement proceedings. In the course of those
proceedings a total of UAH 4,000 was paid to the applicant.
- Being
dissatisfied with the lengthy non-enforcement of the judgments, on 25
May 2001 the applicant lodged a claim with the Cherkassy Regional
Arbitration Court against the Bailiffs' Service, seeking compensation
for pecuniary damage caused by its inactivity.
- On 10 April 2002 the court found for the applicant,
noting that the Bailiffs' Service had failed to take measures to
enforce the judgments of 14 July 2000 and 26 October 2000, and
awarded him UAH 308,332.67
in damages to be paid from the State budget. It further noted that
the Bailiffs' Service could still collect these damages from
company “D.” to cover the expenses. On 29 October
2002 and 25 September 2003 the Kyiv Commercial Court of Appeal
and the Higher Commercial Court of Ukraine, respectively, rejected
the defendant's appeals against the judgment. Subsequently, in
2005-2007, the State Treasury of Ukraine, being an administrator of
the State budget, also attempted to appeal against the judgment, but
the courts found that it lacked standing to that end.
- On
22 November 2002 the applicant requested the Bailiffs' Service to
institute enforcement proceedings. However, according to the
applicant, those proceedings were instituted only after he had made
several pertinent complaints to the court. Later on, the applicant's
writ of enforcement was transferred from one department of the
Bailiffs' Service to another for various reasons; once it was also
transmitted to the State Treasury of Ukraine for further processing
but was subsequently remitted back to the Bailiffs' Service.
Furthermore, the latter terminated and resumed the enforcement
proceedings several times. The applicant lodged numerous complaints
with the courts alleging inactivity and omissions on the part of the
Bailiffs' Service; the courts found those complaints well-founded on
a number of occasions (for example, by decisions of 28 February
2003, 13 December 2004, 22 April and 2 June 2005).
- In August 2008 the applicant instituted proceedings in
the Cherkassy Commercial Court against the Bailiffs' Service, seeking
additional compensation for pecuniary damage (namely, inflation
losses, exemplary damages based on a 3% interest rate and legal
costs) caused by its inactivity. On 28 November 2008 the court
allowed the claim and awarded the applicant UAH 292,720.63
to be paid by the State Treasury of Ukraine from the State budget.
The Bailiffs' Service appealed and the proceedings apparently are
pending before the Kyiv Commercial Court of Appeal.
- In
December 2008 the applicant requested the local department of the
Bailiffs' Service to resume the enforcement proceedings upon the
judgment of 10 April 2002. On 4 December 2008 the Bailiffs' Service
dismissed the request for lack of territorial jurisdiction.
- In
the meantime the judgment of 10 April 2002 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- Relying
on 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 April 2002.
The
Court will examine these complaints under Article 6 § 1
of the Convention and of 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 ...”
“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
- Referring
to the proceedings pending at that time before the domestic courts
upon the appeal by the State Treasury of Ukraine against the judgment
of 10 April 2002 (see paragraph 9 above), the Government
contended that that judgment was not yet final and to this end
requested the Court to reject the present application as premature.
- The
applicant disagreed, asserting that the judgment of 10 April 2002 was
final and subject to enforcement.
- The
Court notes that the attempts by the State Treasury of Ukraine to
appeal against the judgment in question proved to be unsuccessful.
Accordingly it dismisses the Government's objection.
- 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
- The
Government did not make any observations on the merits of the present
application.
- 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 application (see,
for example, Lysenko v. Ukraine, no. 18219/02,
§ 26, 7 June 2007). The Court finds no ground to
depart from its case-law in the present case.
- There
has, accordingly, been a violation of Article 6 § 1
of the Convention and 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 the outstanding debt under the
judgment of 10 April 2002 and inflation losses in the amount of
UAH 149,030.67
by way of compensation for pecuniary damage. In support of his
last-mentioned claim, the applicant presented detailed calculations
based on inflation rates issued by the State Statistics Committee
(Державний
комітет статистики
України). He further
claimed UAH 300,000
in respect of non-pecuniary damage.
- The
Government contested these claims as excessive and unsubstantiated.
With respect to the claim for inflation losses, they argued that this
claim should be rejected as there had been an effective domestic
remedy available which the applicant, in their view, had failed to
use.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment at issue.
- As
to the claim for inflation losses, the Court finds no need to examine
it at this stage of the proceedings, having regard the ongoing
proceedings before the domestic courts aimed to establish the amount
of these losses incurred as the result of the Bailiffs' inactivity
(see paragraph 11 above).
- The
Court further takes the view that the applicant must have sustained
non-pecuniary damage as a result of the violations found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant EUR 2,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed UAH 160.95
for postal expenses. In support of his claim he provided copies of
the relevant vouchers.
- The
Government did not object to the amount claimed by the applicant.
- Having
regard to the Government's position, the Court awards the applicant
EUR 22 under this head.
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
(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,
(i) the
outstanding debt under the judgment of 10 April 2002;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage and EUR
22 (twenty-two euros) for 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 16 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
