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FIFTH
SECTION
CASE OF KONOTENKO v. UKRAINE
(Application
no. 7725/04)
JUDGMENT
STRASBOURG
31
January 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 Konotenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Javier
Borrego Borrego,
Renate
Jaeger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7725/04) 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 Russian national,
Mr Igor Vasilyevich Konotenko (“the applicant”),
on 2 February 2004.
- The
Ukrainian Government (“the Government”) were represented
by Mr Y. Zaytsev, their Agent, and Mrs I. Shevchuk,
Head of the Office of the Government Agent before the European Court
of Human Rights.
- On 30 May 2006 the Court decided to
communicate the complaints concerning the delay in the enforcement of
a judgment given 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.
- In
accordance with Article 36 § 1 of the Convention, the
Russian Government were invited to exercise their right to intervene
in the proceedings, but they declined to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Sidorovka, in the Rostov
region of the Russian Federation.
- On 18 May 1999 the Rovenky Court (Ровеньківський
міський суд
Луганської
області)
awarded the applicant 8,895.36 hryvnyas (UAH) against his former
Ukrainian employer, the State-owned OJSC Mine “Dzerzhynskogo”
(Державне
відкрите акціонерне
товариство
«Шахта ім. Дзержинського»),
in disability benefits and other payments.
- This judgment was not appealed against, became final,
and enforcement proceedings were instituted to collect the debt.
- The debt was paid to the applicant in numerous small
instalments, the last payment of UAH 363.46 having been made on
17 June 2005.
- As explained by the bailiffs' service, the enforcement
of the judgment had been delayed on account of numerous reasons,
including a prolonged reorganization of the debtor, insufficient
funds and a tax lien imposed on its property, as well as a statutory
moratorium on the forced sale of the State property.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment in the case of
Romashov v. Ukraine
(no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ADMISSIBILITY
A. Complaints about the length of the enforcement of a
judgment given in the applicant's favour
- The
applicant complained under Article 6 § 1 about
the State authorities' failure to enforce the judgment given in his
favour in due time. He further complained under Article 13 of
the Convention that he had no effective remedies for his complaint
under Article 6 § 1. The impugned 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.
- The
Government provided no observations on the admissibility of the above
complaints.
- The
Court finds that these complaints are not manifestly ill-founded
within the meaning of Article 35 §§ 1, 3 and 4 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Other complaints
- The applicant additionally complained under
Article 6 § 1 of the Convention that in its
judgment of 18 May 1999, the Rovenky Court had allowed only
a part of his claims. Lastly, the applicant invoked Articles 1, 33
and 34 of the Convention to the facts of the present case.
- Having carefully examined these submissions in the
light of all the material in its possession and insofar as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
- 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.
II. MERITS
A. The applicant's complaint under Article 6 § 1
of the Convention
- The
Government contended that the bailiffs had taken every action
necessary to enforce the judgment in the applicant's favour and that
there had been no violation of Article 6 § 1.
- The
applicant disagreed.
- The
Court notes that the period of debt recovery in the applicant's case
was six years and one month.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Romashov v. Ukraine, cited above, § 46).
- 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.
B. The applicant's complaint under Article 13 of the
Convention
- The
Government contended that the applicant had had effective channels of
complaint, in particular, he could have challenged omissions of the
bailiffs in the course of the enforcement proceedings.
- The
applicant did not comment on this issue.
- The
Court recalls that it had already found ineffective the remedy,
referred to by the Government, in other similar cases (see e.g.,
Voytenko v. Ukraine, no. 18966/02, § 46-48,
29 June 2004). It finds no reason to depart from its case-law in
the present case.
- Accordingly,
there has been a breach of Article 13 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 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the applicant had failed to substantiate
his claims and left the matter to the Court's discretion.
- The
Court recalls that the judgment given in the applicant's favour has
been enforced in full. It does not discern any causal link between
the violation found and the pecuniary damage alleged, and dismisses
the applicant's claim for pecuniary damage as unsubstantiated.
However, it finds that the applicant must have suffered non-pecuniary
damage on account of the delay in collection of the payment due to
him. Ruling on an equitable basis, the Court awards the applicant
EUR 2,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The applicant did not submit any separate claim under
this head; 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 complaints under Article 6 § 1
and 13 of the Convention concerning the delay in the enforcement
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 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, EUR 2,000
(two thousand 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
