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FIFTH
SECTION
CASE OF SHTURKHALEV v. UKRAINE
(Application
no. 10947/04)
JUDGMENT
STRASBOURG
24
April 2008
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 Shturkhalev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 25 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10947/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Vladimir Leonidovich
Sturkhalev, on 24 February 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 April 2006 the Court decided to communicate 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Donetsk.
- On
7 November 2000 and 28 February 2003 the Kuybyshevsky District Court
of Donetsk (hereinafter “the Kuybyshevsky Court”) ordered
the State-owned mining company “Zhovtnevy Rudnyk” (Z.) to
pay the applicant, respectively, UAH 3,641
and 4,403
in salary arrears.
- On
18 December 2000 and 22 April 2003 the Kuybyshevsky Bailiffs' Office
of Donetsk instituted enforcement proceedings.
- In
October 2004 the execution writs were transferred to the
Voroshylivsky Bailiffs' Office of Donetsk.
- In
May 2003 Z. was liquidated and the State-owned company
“Donetskvugillya” assumed its debts.
- In
December 2004 “Donetskvugillya” was divided into three
State-owned companies “Donetska Vugilna Energetychna
Kompaniya”, “Donetska Vugilna Koksova Kompaniya”
and the coal-mine “Gorkogo”.
- During
January – September 2005 the applicant was paid UAH 2,456
under the judgment of 7 November 2000 and UAH 2,781
under the judgment of 28 February 2003.
- According
to the ruling of 31 March 2006 of the Kuybyshevsky Court, “Donetska
Vugilna Energetychna Kompaniya” was assigned as a debtor.
- In
the remainder, the judgments given in the applicant's favour are
still unenforced.
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 ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- Relying
on Articles 6 § 1 and 13 of the Convention, the applicant
complained about the non-enforcement of the final judgments given in
his favour. These 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 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.”
A. Admissibility
- The Court notes that the application 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.
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 remain
unenforced for seven years and four months and almost four years and
one month.
- 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.
- The
Court does not find it necessary in the circumstances to examine the
same complaints under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
II. 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 judgments' debts owed to him. He also claimed
non-pecuniary damage and requested the Court to calculate its amount.
- The
Government agreed to pay the applicant the outstanding judgments'
debts and rejected his claim for non-pecuniary damage.
- In
so far as the judgments' debts in the applicant's favour have
not been paid (paragraph 5 above), the Court notes that the State's
outstanding obligation to enforce these judgments is not in dispute.
Accordingly, the Court considers that, if the Government were to pay
the remaining debts owed to the applicant, it would constitute full
and final settlement of the case.
- The
Court also 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 2,600 in this respect.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 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 judgments' debts still owed to him;
EUR 2,600 (two thousand and six hundred euros) in
respect of non-pecuniary damage, plus any tax that may be chargeable;
(b) that the above amounts shall be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement;
(c) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts 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 24 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
