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FIFTH
SECTION
CASE OF ZOZULYA v. UKRAINE
(Application
no. 17466/04)
JUDGMENT
STRASBOURG
21
December 2006
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 Zozulya v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 27 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17466/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Yuriy Olegovich Zozulya (“the
applicant”) on 28 April 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
5 December 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant, a Ukrainian national, was born in 1980 and lives in the
village of Pryberezhne, the Autonomous Republic of Crimea.
- In
1998 the applicant was seriously injured due to the fault of his
teacher. As a result, he became an invalid.
A. First judgment in the applicant's favour
- On
3 July 2000 the Saky Town Court (the “Saky Court”)
ordered the State College of Audit and Economics of Kharkiv (the
“College”), to pay the applicant a lump sum of
UAH 32,178.02
and a monthly payment of UAH 519.75
in compensation. On 27 September 2000 the Supreme Court of the
Autonomous Republic of Crimea upheld the decision of the
first-instance court. The judgment became final and was enforced in
full on 6 March 2001.
- On
6 December 2001 the Supreme Court of Ukraine rejected the appeal
lodged against the above decisions under the new cassation procedure.
On 5 March 2004 the panel of three judges of the Supreme Court
rejected the request of the College for review of the case in the
light of newly discovered circumstances.
B. Second judgment in the applicant's favour
- On
28 March 2002 the Saky Court ordered the College to pay the applicant
a lump sum of UAH 38,575.35
and a monthly payment of UAH 750.20
in compensation.
- On
10 May 2002 the Zhovtneviy District Bailiffs' Service of Kharkiv
instituted enforcement proceedings.
- In
December 2002 the Bailiffs' Service informed the applicant that the
judgment could not be enforced due to the lack of State budgetary
allocations in respect of the College's expenditure.
- On
11 July 2003 the Bailiffs' Service discontinued the enforcement
proceedings on the ground that the debtor lacked funds.
- In
April 2004 the applicant received a total of UAH 2,250
in payment of the allowance for three months.
- On
4 May 2005 the judgment was enforced in full.
C. Third judgment in the applicant's favour
- On
3 June 2003 the Saky Court awarded the applicant UAH 20,757.74
against the College in compensation.
- On
26 November 2003 the Court of Appeal of the Autonomous Republic of
Crimea upheld the decision of the first instance court. The
enforcement proceedings commenced in June 2004.
- On
30 May 2005 the judgment was enforced in full.
D. Forth judgment in the applicant's favour
- In
2004 the applicant instituted proceedings in the same court against
the College, seeking compensation for his medical, hygienic, and food
expenses, and for loss of income. On 19 May 2004 the court endorsed
the friendly settlement agreement between the applicant and the
College, according to which the latter was to pay the applicant a
lump sum of UAH 1,770
and a monthly payment of UAH 1,435
in compensation.
-
On 28 January 2005 the judgment was enforced in full.
E. Proceedings against the Bailiffs' Service
- In
January 2003 the applicant lodged a complaint with the Zhovtneviy
District Court of Kharkiv (the “Zhovtneviy Court”)
against the Bailiffs' Service for failure to enforce the judgment of
28 March 2002. On 4 April 2003 the court rejected the
applicant's complaint, finding no fault on the part of the Bailiffs'
Service. It held that the judgment could not be enforced due to the
lack of State budgetary allocations in respect of the College's
expenditure, for which the Bailiffs' Service was not responsible.
- On
17 June 2003 the Kharkiv Regional Court of Appeal quashed the
decision of 4 April 2003 and remitted the case for a fresh
consideration.
- On
3 September 2003 the Zhovtneviy Court found against the applicant on
grounds similar to those on which it based its decision of 4 April
2003.
- On
3 December 2003 the Kharkiv Regional Court of Appeal upheld the
decision of 3 September 2003.
- The
applicant's appeal in cassation is still pending before the Supreme
Court.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July
2004).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgments of the Saky Court of 28 March 2002, 3 June 2003, and 19
May 2004 in due time. He invoked Article 6 § 1 of
the Convention, which provides, insofar 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. ...”
I. ADMISSIBILITY
- The
Government raised objections regarding the applicant's victim status
similar to those which the Court has already dismissed in the case of
Romashov v. Ukraine (see Romashov, cited above, §§
23-27) The Court considers that the present objections must be
rejected for the same reasons.
- The
Government further maintained that the enforcement proceedings had
not been unreasonably long and that the Bailiffs' Service had acted
with due promptness.
- The
applicant disagreed. He emphasised that he was an invalid who could
not survive without the necessary treatment, costs for which had been
awarded by the domestic courts, and therefore, even small delays in
the enforcement could lead to irreparable consequences.
A. Non-enforcement of the judgments of 28 March 2002
and 3 June 2003
- The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention about the delay in the enforcement of the judgments
of 28 March 2002 and 3 June 2003 in his favour raises issues of fact
and law under the Convention, the determination of which requires an
examination of the merits. It finds no ground for declaring this
complaint inadmissible.
B. Non-enforcement of the judgment of 19 May 2004
- The Court further notes that the period of enforcement
of the judgment of 19 May 2004 (see paragraphs 17-18) in the
applicant's favour lasted around seven months. The Court further
notes that even bearing in mind the special circumstances of the
applicant's case, this period cannot be considered so excessive as to
disclose an appearance of a violation of the Convention. It follows
that this complaint is manifestly ill-founded within the meaning of
Article 35 § 3, and must be rejected pursuant to Article 35 § 4
of the Convention.
II. MERITS
- In
their observations, the Government contended that there had been no
violation of Article 6 § 1 of the Convention (as
in the case of Romashov, cited above, § 37). The
Government maintained that the length of the enforcement proceedings
in the applicant's case was reasonable and that the Bailiffs' Service
performed all necessary actions and cannot be blamed for the delay.
- The
applicant disagreed.
- The
Court notes that the judgments of the Saky Court of 28 March 2002 and
3 June 2003 remained unenforced for around three years and one month,
and one year and six months, respectively.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in cases raising issues similar to the present
application (see, for instance, Romashov, cited above,
§§ 42-46).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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.
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 UAH 100,000
in respect of non-pecuniary damage.
- The
Government submitted that this claim should be rejected.
- The
Court takes the view that the applicant has suffered some
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 the sum of EUR 1,500
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head within the set
time-limit; the Court therefore makes no award under this head.
C. Default interest
41. 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 lengthy non-enforcement of the court
judgments of 28 March 2002 and 3 June 2003 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 EUR 1,500 (one
thousand five hundred euros) 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, plus any tax that may
be chargeable;
(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 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
