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FIFTH
SECTION
CASE OF LYSENKO v. UKRAINE
(Application
no. 18219/02)
JUDGMENT
STRASBOURG
7 June
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 Lysenko 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 R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18219/02) 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 Vasyl Vasylyovych
Lysenko (“the applicant”), on 8 April 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
27 June 2005 the Court decided to communicate the complaint
concerning the non-enforcement of the judgment given in the
applicant's favour against the Bailiffs' Service 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 1948 and lives in Mykolayiv.
A. Proceedings against the “Scherbany”
Agricultural Company
- On
26 August 1998 the Voznesensk Court ordered the “Scherbany”
private agricultural company (hereafter “the Company”) to
pay the applicant his share of UAH 32,112.
- Between
12 October 1998 and December 1999 the Voznesensk City Bailiffs'
Service (hereafter “the Bailiffs”) attached and sold
three cars belonging to the Company, following which the applicant
was paid UAH 7,130.40.
- On
26 September 2002 the Voznesensk Court, following the applicant's
complaint, declared the Bailiffs' failure to enforce in total the
above-mentioned judgment unlawful.
- On
4 November 2003 the Mykolaiv Regional Department of Justice informed
the applicant that the judgment of 26 August 1998 had not been
enforced in full due to the Company's lack of funds. The
above-mentioned judgment remains unenforced until present.
B. Proceedings against the Bailiffs
- In
November 2002 the applicant instituted proceedings against the
Bailiffs seeking compensation for damage caused by unreasonable delay
in execution of the judgment given in his favour.
- On
15 February 2003 the Voznesensk Court allowed the
applicant's claim and awarded him UAH 925
in compensation for moral damage. The judgment was not appealed
within a statutory one-month time-limit and entered into force on 17
March 2003.
- On
27 March 2003 the Bailiffs opened the enforcement proceedings and on
13 May 2003 the writ of execution was sent to the Voznesensk
Department of the State Treasury.
- On
19 September 2003 the writ of execution was returned to the applicant
due to the lack of the debtor's funds.
- On
29 December 2003 the Voznesensk Court, upon the applicant's claim,
found unlawful the Bailiffs' failure to enforce the judgment of
15 February 2003 and ordered to reinstate the enforcement
proceedings.
- On
8 July 2004 the Bailiffs transferred UAH 925 to the applicant's bank
account and the enforcement proceedings were terminated on 15 July
2004.
II. RELEVANT DOMESTIC LAW
15. 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 ARTICLES 6 § 1 AND 13 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained about the infringement of Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1 caused by
the lengthy non-enforcement the judgment of 15 February 2003 given in
his favour. The above provisions provide, 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 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
- The
Government observed that there was no omission by the State
authorities and the judgment of 15 February 2003 given in the
applicant's favour was enforced in full.
- The
applicant disagreed.
- The
Court observes that it has already dismissed the Government's similar
contentions in the cases in which the non-enforcement of judgments
against State bodies was prevented because of the failure of the
State to take any measures, rather than by a Bailiff's misconduct
(see, for instance, Voytenko v. Ukraine, no. 18966/02, §
30-31, 29 June 2004).
- The
Court finds no reason to reach a different conclusion in the present
case and concludes that the applicant's complaints raise serious
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 part of the application inadmissible.
B. Merits
- In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in the applicant's
respect.
- The
applicant disagreed.
- The
Court notes that the judgment given in the applicant's favour against
the Bailiffs remained unenforced for almost sixteen 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, Romashov, cited above,
§§ 42-46, and Voytenko, cited above, §§
53-55).
- 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.
- The
Court does not find it necessary in the circumstances to examine the
same complaint under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42,
21 December 2004).
II. OTHER COMPLAINTS
- The
applicant further complained under Articles 6 § 1 and 13 of the
Convention and Article 1 of Protocol No. 1 about the lengthy
non-enforcement of the judgment of 26 August 1998 given in his
favour.
- However,
in the light of all the materials in its possession, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that these parts of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 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 EUR 4,097 in respect of
pecuniary and EUR 4,300 in respect of non-pecuniary damage.
- The
Government maintained that the applicant's claims were exorbitant and
non-substantiated.
- The
Court, making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant EUR 200
(two hundred euros) in respect of non-pecuniary damage.
B. Costs and expenses
- In
the present case the applicant failed to submit any claims; the Court
therefore makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
about the non-enforcement of the judgment given against the State
Bailiffs' Service 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 of Protocol No. 1 to the Convention;
- Holds that it is not necessary to examine the
applicant's complaints under Article 13 of the Convention;
5. 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 200 (two
hundred 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 applicant's claim for just
satisfaction.
Done in English, and notified in writing on 7 June 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
