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FIFTH
SECTION
CASE OF STRATEYCHUK v. UKRAINE
(Application
no. 25543/02)
JUDGMENT
STRASBOURG
26 April
2007
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 Strateychuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
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 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25543/02) 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 Vladimir Ivanovich
Strateychuk (“the applicant”), on 12 September 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
17 October 2005 the Court decided to communicate the complaint
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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in the town of Berdyansk,
Zaporizhzhia region.
- On
30 May 2000 the Berdyansk Court awarded the applicant UAH 1,423.39
against the JSC “Yuzhgidromash”, a company in which the
State owned 25% of the shares (hereinafter “YGM”) in
compensation for salary arrears.
- On
7 July 2000 the Berdiansk Bailiffs' Service (hereinafter “the
Bailiffs”) initiated enforcement proceedings in the case.
- On
26 June 2001 the enforcement proceedings were suspended in view of
Order no. 33/5 of 1 June 2001 of the Minister of Justice and the
moratorium on the forced sale of the YGM's property.
- On
24 July 2001 the Berdiansk State Tax Administration informed the
applicant that all YGM's property was under tax lien.
- On
1 April 2002 the Zaporizhzhia Regional Commercial Court instituted
bankruptcy proceedings against the YGM.
- On
12 April 2002 the enforcement proceedings were suspended in view of
the above bankruptcy proceedings.
- On
22 March 2004 the enforcement proceedings were resumed and on 2
April 2004 the Bailiffs attached the debtor's property.
- During
June 2004 – January 2005 the enforcement proceedings were
suspended as the debtor challenged the Bailiffs' acts before the
Berdyansk Court.
- On
10 January 2005 the enforcement proceedings were resumed.
- On
16 June 2005 the Shevchenkivsky District Court of Kyiv prohibited the
forced sale of the YGM property.
- The
judgment of 30 May 2000 given in the applicant's favour remains
unenforced.
Other proceedings
- On
12 February 2002 the Berdyansk Court ordered the applicant to pay
UAH 443.03 to the communal property enterprise in compensation
for unpaid commodity charges. This judgment was upheld by the
Zaporizhzhia Regional Court of Appeal. The applicant did not 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 AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention and
under Article 1 of Protocol No. 1 about the non-enforcement of the
judgment of the Berdiansk Court of 30 May 2000. The above provisions
read, 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. ...”
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
- The
Government raised objections, contested by the applicant, regarding
exhaustion of domestic remedies similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement against
the State-owned companies (see e.g. Sokur v Ukraine (dec.),
no. 29439/02, 16 December 2003 and Trykhlib v.
Ukraine, no. 58312/00, §§ 39-43, 20 September
2005). The Court considers that these objections must be rejected for
the same reasons.
- The Court concludes that the applicant's complaints
under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 raise issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring these complaints
inadmissible. The Court must therefore declare them admissible.
B. Merits
- In
their observations on the merits of the applicant's complaints, the
Government contended that there had been no violation of
Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1.
- The
applicant disagreed.
- The
Court notes that the decision of the Berdyansk Court remains
unenforced for six years and eleven months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in a number of similar cases (see, for instance, Rudenko v.
Ukraine, no. 11412/02, 29 November 2005 and Sokur
v. Ukraine, cited above).
- 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 and Article 1 of Protocol No. 1.
II. OTHER COMPLAINTS
- The
applicant complained that as a result of the non-enforcement of the
above-mentioned judgment he was unable to pay commodity charges as
ordered by the decision of 12 February 2002 by the Berdiansk Court.
He referred to Article 17 and Article 1 of Protocol No. 1.
- The
Court notes that the applicant did not avail himself of the
possibility to appeal in cassation against this decision before the
Supreme Court and has, therefore, not exhausted all the remedies
available to him under Ukrainian law (see Vorobyeva v. Ukraine
(dec.), no. 27517/02, 17 December 2002). It follows
that this part of the application must be declared inadmissible
pursuant to Article 35 §§ 1 and 4 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 the unsettled debt due to him under the judgment at
issue (see paragraphs 5 above) as well as UAH 7,000 (EUR 1,150)
in respect of non-pecuniary damage.
- The
Government did not submit any comments on the applicant's claims for
pecuniary damage and agreed to pay UAH 7,000 by way of
compensation for non-pecuniary damage in the event of the Court's
finding a violation.
- The
Court finds that the Government should pay the applicant the
outstanding debt due to him under the judgment of 30 May 2000 of the
Berdyansk Court in order to satisfy his claim for pecuniary damage.
Additionally, it awards to the applicant EUR 1,150 by way of
compensation for non-pecuniary damage.
B. Costs and expenses
- The applicants did not submit any separate 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 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 that there has been a violation of
Article 1 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 according to
Article 44 § 2 of the Convention, the
outstanding debt in accordance with the judgment of 30 May 2000 of
the Berdyansk Court, as well as EUR 1,150 (one thousand one
hundred and fifty 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.
Done in English, and notified in writing on 26 April 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
