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FIFTH
SECTION
CASE OF GUBENKO v. UKRAINE
(Application
no. 22924/02)
JUDGMENT
STRASBOURG
10
August 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 Gubenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 10 August 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22924/02) 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 Valeriy
Konstantinovich Gubenko (“the applicant”), on 28 May
2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V.Lutkovska and Mr Y.Zaytsev.
- On
24 March 2005 the Court decided to communicate the applicant’s
complaint under Article 6 § 1 of the Convention concerning the
non-enforcement of the judgment in the applicant’s favour 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.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and resides in the town of Novogrodovka,
Donetsk region, Ukraine.
- In
2000 the applicant instituted proceedings in the Novogrodovskiy Town
Court against the Novogrodovskaya Mining
Company No. 1/3 - a State-owned enterprise - to recover
compensation for work related injuries and other payments. By
decision of 20 March 2000, the court awarded the applicant
UAH 18,092.56.
- On
18 April 2000 the Bailiffs’ Service suspended the
enforcement proceedings in the applicant’s case. On 12 May 2000
the Novogrodovskiy Town Court ordered the Bailiffs’ Service to
resume the enforcement proceedings.
- By
decisions of 30 August 2000 and 14 May 2001, in
the course of bankruptcy proceedings against the debtor, the
Commercial Court of the Donetsk Region imposed a ban on the seizure
and sale of the debtor’s assets.
- In
2001 the applicant instituted proceedings in the Novogrodovskiy Town
Court against the Bailiffs’ Service for failure to enforce the
judgment in his favour. On 3 September 2001 the court found
against the applicant, finding no fault on the part of the bailiff.
On 5 November 2001 the Court of Appeal of the Donetsk
Region upheld the decision of the first-instance court. On
26 March 2002 the judge of the Novogrodovskiy Town Court
adjourned consideration of the applicant’s appeal in cassation
for failure to comply with procedural requirements and to pay the
court fees. The parties did not submit any information with regard to
the outcome of these proceedings.
- In February 2003 the Novogrodovskaya Mining Company
was reorganised and became a structural subdivision of the
Selidovugol Mining Company. As the latter
thereby became the debtor, in February 2004 the enforcement
proceedings were transferred to the Selidovskiy Town Bailiffs’
Service (Отдел Государственной
исполнительной
службы Селидовского
городского
управления
юстиции).
11. The applicant instituted proceedings
in the Selidovskiy Town Court against the Selidovskiy Town Bailiffs’
Service claiming compensation for material and moral damage caused by
a lengthy non-enforcement of the judgment in his favour. On 30 June
2005 the Selidovskiy Town Court asked the applicant to pay a court
fee. The parties did not submit any further information about these
proceedings.
- The
judgment of 20 March 2000 has been enforced in part and the
applicant was paid UAH 11,903,
the remaining debt being UAH 6,189.56.
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. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicant introduced a new complaint,
alleging a violation of Article 1 of Protocol No. 1 on
account of the non-enforcement of the judgment in his favour.
- In
the Court’s view, the new complaint is not an elaboration of
the applicant’s original complaint under Article 6 §
1 of the Convention, lodged with the Court approximately two years
earlier, on which the parties have commented. The Court considers,
therefore, that it is not appropriate now to take these matters up
separately (see Piryanik v. Ukraine, no. 75788/01, § 20,
19 April 2005).
II. ADMISSIBILITY
A. Complaints under Articles 2 § 1 and 4 § 1
of the Convention
- The
applicant complained that the existing situation infringed his right
to life under Article 2 § 1 of the Convention, given his
low standard of living. The Court reiterates that, according to its
case-law, neither Article 2 nor any other provision of the Convention
can be interpreted as conferring on an individual a right to enjoy
any given standard of living (Wasilewski v. Poland, no.
32734/96, 20 April 1999). Moreover, the applicant has not shown that
he suffers such destitution as to put his life at risk (see Sokur
v. Ukraine (dec.), no. 29439/02, 26 November
2002). It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- The
applicant next complained about a violation of Article 4 § 1 of
the Convention, referring to the fact that he was forced to work
without receiving remuneration. The Court notes that the applicant
performed his work voluntarily and his entitlement to payment has
never been denied. The dispute thus involves civil rights and
obligations, but does not disclose any element of slavery or forced
or compulsory labour within the meaning of this provision (see Sokur
v. Ukraine (dec.), cited above). In these circumstances, the
Court considers that this part of the application must be rejected as
being manifestly ill-founded pursuant to Article 35 §§ 3
and 4 of the Convention.
B. Complaint under Article 6 § 1 of the Convention
- The
applicant complained about the length of the non-enforcement of the
judgment in his favour. 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. ...”
- The
Government raised objections regarding the exhaustion of domestic
remedies similar to those which the Court has already dismissed in
the case of Romashov v. Ukraine (no.
67534/01, §§ 28-32, 27 July 2004). The Court
considers that the present objections must be rejected for the same
reasons.
- The Court concludes that the applicant’s
complaint under Article 6 § 1 of the Convention
about the delay in the enforcement of the judgment of the
Novogrodovskiy Town Court 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.
III. MERITS
- The Government maintained that the
responsibility of the State in this situation was limited to the
organisation and proper conduct of enforcement proceedings and
that the length of the enforcement proceedings had been caused by the
critical financial situation of the debtor company and the energy
sector of the Ukrainian economy in general. The Government contended
that the Bailiffs’ Service performed all necessary actions and
cannot be blamed for the delay. The regularity of the enforcement
proceedings in the present case was confirmed by the domestic courts.
The Government argued that the State could not be considered
responsible for the debts of its enterprises and that the State
annually allocated substantial amounts from its budget to cover part
of the disability allowances and other compensatory payments to the
workers in the mining industry.
- The
applicant disagreed.
- The Court notes that the judgment in the applicant’s
favour has not been fully enforced for more than six years and three
months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in cases like the present application (see, among
others, Sokur v. Ukraine, cited above, §§ 30-37).
- 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
Article 6 § 1 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
- The
applicant claimed 8,921 EUR in respect of pecuniary and non-pecuniary
damage.
- The
Government maintained that the applicant has not substantiated his
claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- However,
in so far as the judgment in the applicant’s favour has
not been enforced in full (paragraph 12 above), the Court considers
that, if the Government were to pay the remaining judgment debt owed
to the applicant, it would constitute full and final settlement of
his claim for pecuniary damage.
- The
Court further considers that the applicant must have sustained
non-pecuniary damage, and awards him EUR 2,000 in this respect.
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 in this respect.
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 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 owed to him, as well as EUR 2,000 (two thousand euros) in
respect of non-pecuniary damage;
(b) that the above amount shall 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;
(c) 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 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
