BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SHYLKIN AND POBEREZHNYY
v. UKRAINE
(Applications
nos. 6924/06 and 8252/06)
JUDGMENT
STRASBOURG
28 May
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 Shylkin and
Poberezhnyy 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,
Mirjana Lazarova Trajkovska,
judges,
Stanislav Shevchuk, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 5 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 6924/06 and 8252/06)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Volodymyr Ivanovych Shylkin and Mr Anatoliy Grygorovych
Poberezhnyy (“the applicants”), on 28 January and 15
February 2006 respectively.
- Mr
Poberezhnyy was represented by Mr I. Melnyk, a lawyer
practising in Kamyanets-Podilsky, Khmelnytsky region, Ukraine.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
10 January and 11 September 2007 the Court decided to communicate the
applicants' complaints under Article 13 of the Convention and Article
1 of Protocol No. 1 to the Government. Under the provisions of
Article 29 § 3 of the Convention, it decided to examine the
merits of the applications at the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Mr Shylkin
- The
applicant was born in 1950 and lives in Pervomaysk, Mykolayiv region,
Ukraine.
- On 19 May 2003, after several rounds of court
proceedings, the Pervomaysk District Court of Mykolayiv Region
ordered the Pervomaysk Town Centre of Municipal Companies (Комбінат
комунальних
підприємств
міста Первомайська),
a municipal entity owned by the local council, to pay the applicant
the total amount of 7,498.94 Ukrainian hryvnyas
(UAH)
in damage caused to his apartment and other property.
- This judgment was not appealed against and became
final. On 23 November 2003 the State
Bailiffs' Service
instituted enforcement
proceedings. According to the Government, in the course of
these proceedings the amount of UAH 1,500 had been transferred
to the bank account indicated by the applicant. However, because the
bank details provided by the applicant were inaccurate that sum was
withdrawn. The applicant, in turn, denied that any sum had ever been
paid into his bank account. He provided the relevant bank statement
to support his claim.
- On 19 May 2004 the local council decided to liquidate
the debtor entity and the liquidation proceedings were initiated. In
this respect, on 1 June 2004 the State Bailiffs' Service
terminated the enforcement proceedings and transferred the writ of
enforcement to the liquidation commission for further processing. The
liquidation proceedings apparently are still pending.
- The
applicant complained to various State authorities about lengthy
non-enforcement of the judgment in his favour but to no avail.
- The
judgment of 19 May 2003 remains unenforced.
B. Mr Poberezhnyy
- The
applicant was born in 1952 and currently resides in the village of
Dovzhok, Khmelnytsky region, Ukraine.
- On 13 April 2000 the local city council decided to
liquidate the applicant's employer, the Kamyanets-Podilsky
Maintenance Municipal Company (Кам'янець-Подільське
ремонтно-виробниче
комунальне
підприємство)
owned by this council, and liquidation proceedings were initiated.
Subsequently the applicant resigned.
- On
11 July 2001 the Kamyanets-Podilsky City Court awarded the applicant
UAH 3,385.42
in salary arrears and other payments due to him by his
former employer.
14. In
so far as this judgment became final, on 15 October 2001 the State
Bailiffs' Service instituted proceedings to enforce it. In the course
of these proceedings the total amount of UAH 2,195 was paid to
the applicant.
- On
17 August 2003 the State Bailiffs' Service terminated the enforcement
proceedings and transferred the writ of enforcement to the
liquidation commission for further processing. The liquidation
proceedings are apparently still pending.
- On
10 April 2003 the applicant requested the local Prosecutor's Office
to institute criminal proceedings against L. and M., the head of the
liquidation commission of the debtor company and the bailiff
respectively, for lengthy non-enforcement of the judgment given in
his favour. Apparently the proceedings are still pending.
- The
applicant also complained to various State authorities but to no
avail.
- The
judgment of 11 July 2001 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The general provisions of domestic legislation on
enforcement of judicial decisions are set out in the judgment of
27 July 2004 in the case of Romashov v. Ukraine
(no. 67534/01, §§ 16-18).
- The
provisions of the Civil Code of 18 July 1963 (repealed on 1 January
2004) and the Civil Code of 16 January 2003 (in force since 1 January
2004) on owners' liabilities for the obligations of their legal
entities are set out in the case of Mykhaylenky and Others v.
Ukraine, nos. 35091/02 and foll., §§ 25-26, ECHR
2004 XII).
21. Article
143 of the 1996 Constitution of Ukraine provides:
“Territorial communities of a
village, settlement and city, directly or through the bodies of local
self-government established by them, manage the property that is in
municipal ownership; [...] establish, reorganise and liquidate
municipal enterprises, organisations and institutions, and also
exercise control over their activity; [...].”
22. Section
31 of the Property Act 1991 (repealed
by the Act of 27 April 2007)
provides that State property includes State property itself and the
property of administrative-territorial units (municipal
property).
- By
a letter of 27 December 2004 the Ministry of Justice of Ukraine,
having analysed the then current legislation, concluded, inter
alia, that State and municipal property were different types of
property.
- Article
78 “Municipal unitary enterprises” of the Commercial Code
of Ukraine (in force since 1 January 2004) provides that municipal
unitary enterprises are set up by a competent body of local
self-government and are managed by it. A municipal
unitary enterprise holds assets under the right of economic
management (for municipal commercial enterprises) or operative
management (for municipal non-commercial enterprises). A municipal
unitary enterprise is managed by the head of that enterprise
appointed by the body to which it is subordinate.
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 VIOLATIONS OF ARTICLE 13 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 IN RESPECT OF THE
LENGTHY NON-ENFORCEMENT OF THE JUDGMENTS IN THE APPLICANTS' FAVOUR
- The
applicants complained about the State authorities' failure to enforce
the judgments taken in their favour in due time. In this regard they
invoked Article 1 of Protocol No. 1. Mr Shylkin also complained
under Article 13 of the Convention that he had no effective remedy in
that respect. These provisions provide, in so far as relevant, as
follows:
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
- Relying on the provisions of national legislation
(among others, the 1963 and 2003 Civil Codes and the 1997 Local
Self-Government Act), the Government submitted that they were not
responsible for the debts of the municipal enterprises.
They further submitted that Mr Shylkin had failed to exhaust
domestic remedies as required by Article 35 § 1
of the Convention. In particular, they maintained that he had not
availed himself of the opportunity to challenge the liquidation
commission's inactivity before the relevant commercial court or to
apply to any domestic court against the Bailiffs' Service to
challenge the allegedly inadequate enforcement of the judgment in his
favour. Additionally, the Government challenged the victim status of
Mr Shylkin, as, according to them, he had failed to provide the
State Bailiffs' Service with proper bank details (see paragraph 7
above)
- The
Court notes that the debtor enterprises in the applicants' cases were
owned and controlled by local authorities (see paragraphs 6, 8 and 12,
respectively). According to the established case-law of the
Convention organs, agencies of local self-government are State
organisations in the sense that they are governed by public law and
exercise public functions vested in them by the Constitution and the
laws. The Court reiterates that under the international law the term
“State organisation” is not limited only to organs of the
central Government. In cases where State power is decentralised it
extends to any national authority which exercises public functions
(see, for example, Mikryukov v. Russia, no. 7363/04,
§ 21, 8 December 2005 with further references). It
follows that the actions and/or omissions of the local authorities
are attributed to the respondent State and for these reasons the
Court concludes that the latter is accountable for the debts of
municipal enterprises to the same extent as it
is accountable for the debts of State-owned enterprises. Accordingly,
the Court dismisses the Government's objection.
- As
regards the Government's objection that Mr Shylkin had failed to
exhaust domestic remedies, the Court notes that similar objections
have already been rejected in a number of judgments adopted 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.
- As
to the Government's objection to the victim status of Mr Shylkin,
the Court observes that, irrespective of the parties' disagreement as
to whether the sum of UAH 1,500 was transferred to the
applicant's bank account, even if it had been transferred and
accepted, that sum would not in itself have enforced the judgment at
issue and therefore the applicant would have in any case retained his
victim status. Accordingly, the Court dismisses the Government's
objection.
- The Court notes that these 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
- In
their observations on the merits of the applicants' claims, the
Government contended that there had been no violation of Article 13
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 six years.
- The
Court reiterates that it has already found violations of Article 13
of the Convention and Article 1 of Protocol No. 1
in cases like the present applications (see, among other authorities,
Kucherenko v. Ukraine, no. 27347/02, § 27,
15 December 2005).
- 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 1 of Protocol
No. 1 in respect of the lengthy non-enforcement of the judgments
in the applicants' favour in the present applications and a violation
of Article 13 of the Convention in respect of the lack of an
effective remedy for the complaints of Mr Shylkin.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Mr
Shylkin additionally complained under Article 8 of the Convention and
Article 1 of Protocol No. 1 that the State authorities had
failed to prevent damage to his property and to mitigate the
consequences thereof. After communication of his application to the
Government, the applicant added his submissions, stating that the
respondent State had breached his right of access to a court, as
guaranteed by Article 6 of the Convention, during the judicial
proceedings against the debtor entity. All these grievances had
caused suffering and humiliated him in breach of Article 3 of the
Convention.
- Mr
Poberezhnyy additionally complained under Article 4 § 1
of the Convention that he had been subjected to slavery due to the
fact that his work had not been remunerated. He also invoked Article
17 of the Convention.
- Having
carefully considered the applicants' submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
- It
follows that this part of the applications must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
IV. 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
Shylkin claimed the total amount of UAH 30,988.90 in respect of
pecuniary damage, consisting, inter alia, of UAH 9,830
for damage caused to his property, UAH 6,000 for funeral
expenses in respect of the burial of his aunts, and UAH 7,858.90
for his medical expenses. The applicant also claimed EUR 35,000 in
respect of non-pecuniary damage.
- Mr
Poberezhnyy claimed the outstanding debt under the judgment in his
favour and EUR 5,000 in respect of non-pecuniary damage.
- The
Government contested these claims as excessive and unsubstantiated.
- The
Court finds, at the outset, that the Government should pay the
applicants the respective judgment debts, where they remain
outstanding, by way of compensation for pecuniary damage. It does
not, however, discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects the remainder
of the claims in respect of pecuniary damage.
- The
Court further finds that the applicants must have suffered
non-pecuniary damage on account of the violations found. Ruling on an
equitable basis, it awards Mr Shylkin EUR 1,800 and Mr Poberezhnyy
EUR 2,600 under this head.
B. Costs and expenses
- The
pecuniary damage claims by Mr Shylkin mentioned above also included
the costs and expenses he had incurred before the domestic
authorities and the Court: in particular, UAH 1,700 for his
legal representation before the domestic authorities; UAH 11,450
for his legal representation before the Court (in support the
applicant provided a contract with a Mr B., signed on 10 February
2008, under which the latter undertook to study the applicant's case
and prepare his observations in reply to the Government's; the
applicant, in his turn, paid Mr B. 150 US dollars in advance and
would pay an additional 2,000 US dollars should the Court award
him more than EUR 30,000); UAH 1,717.08 in transportation
costs; UAH 1,263.44
in postal and other (copying and typing of documents) expenses,
including UAH 43.44
for postal expenses before the Court; the latter, however, were
substantiated with pertinent vouchers to the amount of UAH 4.9
only.
- Mr
Poberezhnyy claimed UAH 123.48
in respect of costs and expenses he had incurred before the Court. In
this connection he provided the necessary vouchers amounting
in total to UAH 134.18.
- The
Government contested these claims as excessive and unsubstantiated.
They did not object to the sum claimed by Mr Poberezhnyy for costs
and expenses being awarded to him.
- The Court reiterates that, in order for costs and
expenses to be included in an award under Article 41, it must be
established that they were actually and necessarily incurred in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention and are reasonable as to quantum (see,
among many other authorities, Nilsen and Johnsen v. Norway
[GC], no. 23118/93, § 62, ECHR 1999-VIII).
- The
Court considers that these requirements have not been met in the case
of Mr Shylkin. In particular, the costs of the domestic
proceedings have no connection with the violation found in the
present case. The Court further notes that Mr Shylkin was not legally
represented before it and, as his case is not particularly complex,
he was not required to be. His transportation costs cannot be
regarded as necessarily incurred whereas his postal and other
(copying and typing of documents) expenses are substantiated with
pertinent vouchers to the amount of less than EUR 1 only.
However, it is obvious that he has incurred
postal expenses in relation to making his application to the Court.
- As
to the claims by Mr Poberezhnyy, the Court takes into account that
the applicant substantiated them to the amount of EUR 20 and
that the Government did not object to this sum being awarded.
- Regard
being had to the information in its possession and to the above
considerations, the Court awards the applicants EUR 20 each and
rejects the remainder of the claims 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
1. Decides to join
the applications;
- Declares the complaints under Article 13 of
the Convention and Article 1 of Protocol No. 1 to the
Convention in respect of the lengthy non-enforcement of the judgments
in the applicants' favour and the lack of effective remedy for the
complaints of Mr Shylkin admissible and the remainder of the
applications inadmissible;
- Holds that there has been a violation of
Article 1 Protocol No. 1 to the Convention;
- Holds that there has been a violation of Article
13 of the Convention in case of Mr Shylkin;
- Holds
(a) that
the respondent State is to pay, 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
1,800 (one thousand eight hundred euros) to Mr Shylkin and EUR 2,600
(two thousand six hundred euros) to Mr Poberezhnyy in respect of
non-pecuniary damage and EUR 20 (twenty euros) each in respect
of 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 applicants;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 28 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
