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FIFTH
SECTION
CASE OF
SOVA v. UKRAINE
(Application
no. 36678/03)
JUDGMENT
STRASBOURG
21
June 2007
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention.
In the case of Sova 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 29 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36678/03) 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 Andrey Maksimovich
Sova (“the applicant”), on 15 October 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
11 April 2006 the Court decided to grant the application priority and
to communicate the complaint concerning the lengthy non-enforcement
of the judgments 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 1927 and lives in the town of Gorlivka, Donetsk
region.
1. The proceedings against the State-owned coal-mine
Lenina
- On
18 April 2002 the Tsentralno-Miskiy Court of Gorlivka awarded the
applicant UAH 8,888.37
against the State-owned coal-mine Lenina (hereinafter “the
Lenina Mine”) in compensation for social benefits arrears and
ordered the Social Security Fund to pay the applicant UAH 143.88
monthly as of 1 April 2001. This decision became final on 20 May
2002.
- On
29 July 2002 the Donetsk Regional Court of Appeal rejected the
applicant's appeal and upheld the judgment of 18 April 2002. The
applicant did not appeal in cassation.
- On
6 September 2002 the Kalininsky Bailiffs' Office of Gorlivka
(hereinafter “the Bailiffs”) initiated the enforcement
proceedings in the case.
- On
28 December 2002 the Lenina Mine was re-organised into a structural
division of the State-owned company “Artemvugillya”,
which on 18 August 2004 was re-organised into the State-owned Donetsk
Mining Company.
- On
22 September 2005 the applicant was paid the total amount of social
benefits arrears awarded him under the judgment of 18 April 2002.
- To
the extent that the judgment of 18 April 2002 concerned the monthly
payments to the applicant by the Social Security Fund, it was
enforced in due time.
2. The proceedings against the State-owned coal-mine
Gayevogo
- On 29 April 2003 the Kalininsky District Court of
Gorlivka (hereinafter “the Kalininsky Court”) ordered the
State-owned coal-mine Gayevogo (hereinafter “the Gayevogo
Mine”) to pay the applicant UAH 4,168.25
in compensation for salary arrears. This decision became final on
25 June 2003.
- On
27 June 2003 the Bailiffs initiated the enforcement proceedings.
- Between
February 2003 and February 2005 the Donetsk Commercial Court on three
occasions initiated and terminated the bankruptcy proceedings against
the Gayevogo Mine.
- On
3 February 2005 the Kalininsky Court rejected the applicant's claim
for compensation against the Gayevogo Mine and the Bailiffs for
failure to enforce the judgment of 29 April 2003.
- On
1 April 2005 the Donetsk Regional Court of Appeal upheld this
decision. The applicant's cassation appeal was left without
consideration for failure to comply with the formalities prescribed
by the Code of Civil Procedure.
- On
17 August 2005 the applicant was paid the total amount awarded to him
under the judgment of 29 April 2003.
3. Other proceedings
- In
June 2004 the applicant instituted civil proceedings against the
State Pension Fund seeking reassessment of his pension. On 6 December
2004 the Kalininsky Court found against him. The applicant did not
appeal against this decision. In 2005 a similar claim was left
without consideration for failure to comply with the procedural
formalities.
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
- The
applicant complained about an infringement of Article 6 § 1 of
the Convention on amount of the lengthy non-enforcement of the
judgments given in his favour against the Lenina Mine and the
Gayevogo Mine. The above provision 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...”
A. Admissibility
- The
Government observed that there was no omission by the State
authorities and the judgments given in the applicant's favour were
enforced in full.
- The
Court observes that the applicant's complaint under Article 6 § 1
of the Convention 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. The Court
must therefore declare it admissible.
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 judgments given in the applicant's favour
remained unenforced for twenty-six and forty months.
- The
Court recalls that it has already found violation of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Sokur v. Ukraine, cited above and Mykhaylenky and
Others v. Ukraine, nos. 35091/02, 35196/02, 35201/02,
35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and
42814/02, § 45, ECHR 2004).
- 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 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant further complained of the unfair
hearings and outcome of the proceedings instituted by him.
- 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 this part 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 pecuniary and non-pecuniary damage and requested
the Court to calculate their exact amount.
- The
Government did not submit their observation under this head.
- The
Court considers that the applicant must have sustained non pecuniary
damage as a result of the violations found (see Kryachkov
v. Ukraine, no. 7497/02, § 30, 1 June 2006).
Making its assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant
EUR 1,300 in this respect.
B. Costs and expenses
- The
applicant also claimed EUR 7 for the postal expenses incurred in the
context of the proceedings before the Court. The Court considers it
reasonable to award the applicant this sum.
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 judgments given 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 1,307 (one
thousand three hundred and seven euros) in respect of non-pecuniary
damage and costs and expenses, plus any tax that may be chargeable;
(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;
Done in English, and notified in writing on 21 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
