FIFTH SECTION
CASE OF
KISELYOV v. UKRAINE
(Application no.
42953/04)
JUDGMENT
STRASBOURG
13 June 2013
This judgment is final but
it may be subject to editorial revision.
In the case of Kiselyov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Committee composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 21 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 42953/04) 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 Andrey Aleksandrovich Kiselyov (“the
applicant”), on 30 November 2004.
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr N. Kulchytskyy.
On 1 June 2010 the application was communicated to
the Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1967 and lives in Simferopol.
A. First set of proceedings
1. Consideration of the case by the courts
On 11 February 2002 the applicant challenged the
actions of his former commander and claimed the payment of various allowances
and compensation for non-pecuniary damage. On 27 March 2002 the Simferopol Garrison Court allowed the applicant’s claims. By a decision of 18 June 2002 the
Navy Court of Appeal quashed that judgment. The proceedings were severed into
three separate sets.
By a judgment of 6 March 2003, the Simferopol Garrison Court declared unlawful, inter alia, the commander’s refusal to
pay allowances due to the applicant on the date of his retirement, and ordered
the commander to grant the applicant’s claim in that part. By the same judgment
the court also awarded the applicant UAH 3,800 in compensation for
non-pecuniary damage. On 12 June 2003 the Navy Court of Appeal reduced that
amount and upheld the remainder of the judgment with minor amendments. On 26
November 2003 the Supreme Court upheld the judgment of 12 June 2003.
On 11 December 2003 and 25 December 2003 the
Simferopol Garrison Court considered the remainder of the applicant’s claim, as
severed from the initial claim, and awarded him, respectively, 2,263.40 Ukrainian
hryvnias (approximately 331 euros (EUR)) and UAH 204 (approximately EUR 30) in respect
of various payments due to him on the date of his retirement. On 4 March 2004 the Navy Court of Appeal upheld
those judgments. On 26 May and 9 June 2004 those judgments were also upheld by
the Supreme Court.
2. Enforcement of the judgments of 11 December 2003
and 25 December 2003
According to the Government, between 22 February
2005 and 25 December 2008 bailiffs partly enforced the judgment of 11 December
2003, paying UAH 1,670.63 to the applicant. The Government stated that as of 28
September 2010 the outstanding debt was UAH 592,77. According to the applicant,
it was UAH 1,399.97.
On 22 February 2005 bailiffs fully enforced the
judgment of 25 December 2003.
B. Second set of proceedings
On 6 September 2002 the applicant lodged a civil
claim with the Zheleznodorozhnyy District Court of Simferopol (“the District
Court) against the military unit, the Ministry of Defence, the Ministry of
Finance, the State Treasury and the State Insurance
Fund for Work-Related Accidents and Diseases (“the Fund”). The applicant claimed
the payment of compensation for damage caused to him a result of his
disability. He also claimed that the defendants failed to provide him with free
housing. On 9 March 2004 the District Court decided to sever the
proceedings (see below).
1. Proceedings in respect of the compensation claim
On 3 February 2005 the District Court partly
allowed the applicant’s claim. He was awarded compensation, to be paid by the
Fund. On 25 May 2005 the Court of Appeal of the Autonomous Republic of Crimea
quashed the part of the judgment concerning the Fund’s obligation to pay
compensation and awarded the applicant UAH 27,923.65 in compensation for
pecuniary and non-pecuniary damage, to be paid by the Ministry of Defence. By the same judgment the applicant was entitled to receive
an allowance of UAH 673.57 in the period from 1 May to 1 November 2005.
On 19 December 2007 the Zhaporizhzhya Regional Court of Appeal, acting as a
court of cassation, upheld that judgment.
2. Proceedings concerning the applicant’s claim for
free housing
The case has been considered by the District
Court and the Court of Appeal of the Autonomous Republic of Crimea; however, no
decision on the merits has been adopted. As of 28 September 2010 the
proceedings were still pending before the District Court.
According to the information provided by the
Government, there were fifteen adjournments of the hearings, four of them due to the parties’ failure to appear and two of them to the
applicant’s failure to appear. On two occasions the proceedings were suspended
pending the outcome of other proceedings: the first period of suspension lasted
nine and a half months and the second period one year and nine months.
C. Third set of the proceedings
On 24 February 2006 the Tsentralny District
Court of Simferopol awarded the applicant UAH 771.24 and UAH 195.34 in
allowance arrears, to be paid by the Ministry of Defence. By the same judgment the applicant was entitled to receive
a monthly allowance of UAH 812.89 (approximately EUR 129) up to 1
November 2008.
According to the Government, on 27 November 2006
the amount of UAH 195.34 was paid to the applicant. The applicant then received
regular payments in accordance with the judgment. By November 2008 the
applicant had been paid UAH 36,057.09 in total. The enforcement proceedings
were closed as the judgment had been enforced in full.
According to the applicant, the first payment
under that judgment was made in December 2006. Subsequent payments were also
delayed. There was still an outstanding debt in the amount of UAH 908.27
(approximately EUR 85).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF NON-ENFORCEMENT
OF COURT JUDGMENTS
The applicant complained under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 that the judgments of 11 December
2003, 25 December 2003 and 24 February 2006 had not been properly
enforced.
A. Admissibility
As regards the alleged failure to enforce the
judgment of 25 December 2003, the Court considers that given the amount at
stake (approximately EUR 30), the applicant did not suffer any significant
disadvantage on account of the alleged violation. The Court further does not
discern any shortcomings which could seriously affect the applicant as regards
the enforcement of the judgment of 24 February 2006. Even assuming that there
still remained an outstanding debt, which according to the applicant
constituted approximately EUR 85, the Court considers that the applicant has
not substantiated that he had sustained any significant disadvantage in that
regard. Moreover, no human rights issues require the further examination of those
matters (see Eduard Fedotov v. Moldova (dec.), no. 51838/07, 24 May 2011, and Bazelyuk v. Ukraine (dec.), no. 49275/08,
27 March 2012). This part of application is therefore rejected as
inadmissible under Article 35 § 3 (b) of the Convention.
As to the alleged non-enforcement of the
judgment of 11 December 2003, the Court considers that this part of application
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The Court notes that there is disagreement
between the parties as to the amounts actually paid to the applicant under the
judgment of 11 December 2003. However, it is common ground that that judgment
remained completely unenforced until 22 February 2005 and that that judgment
had not been enforced in full at least by 28 September 2010.
Having regard to its well-established case-law
on the subject (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, §§
56-58, 15 October 2009), the Court considers that these undisputed facts are
sufficient to conclude that there has been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION
OF ARTICLE 6 § 1 OF THE CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that the length of the judicial proceedings instituted in
September 2002 had been excessive.
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The applicant maintained that the proceedings
had been unreasonably lengthy. The Government contested
that argument, stating that the case was complex and that there had been no
major delays attributable to the State. They further submitted that the length
of the proceedings could be explained by the conduct of the applicant.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities and what was at
stake for the applicant in the dispute (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
Turning to the present case, the Court notes
that in the second set of proceedings the applicant lodged his civil claim on 6
September 2002. As of 28 September 2010, that is, more than eight years
later, his claim concerning free housing was still pending before the
first-instance court.
. Having
examined all the material submitted to it, the Court considers that the
Government have not put forward any fact or argument capable of persuading it that
such a length of proceedings was justified in the circumstances of the present
case. Having regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and failed to meet
the “reasonable time” requirement. There has therefore been a violation
of Article 6 § 1 of the Convention.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained of other violations of rights
protected by the Convention and other international treaties.
The Court has examined these complaints and
considers that, in the light of all the material in its possession and in so
far as the matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. Accordingly, the Court rejects them as manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. 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 UAH 683,558.79 in respect
of pecuniary damage. He also claimed that the State should provide his family
with a comfortable dwelling or pay him UAH 1,586,219. The applicant further
claimed EUR 80,000 in respect of non-pecuniary damage.
The Government contested these claims.
In the present case, bearing in mind the
principles which it has developed for assessing the amount of compensation to
be awarded where it has found a breach of the Convention as regards issues of non-enforcement
and length of proceedings in similar cases, the Court considers it reasonable
and equitable to award the applicant 3,500 euros (EUR). This award is to cover
any pecuniary and non-pecuniary damage. The Court further
notes that the respondent State has an obligation to enforce the judgment of 11 December
2003.
B. Costs and expenses
The applicant did not submit any claims under
this head. The Court therefore makes no award.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the non-enforcement
of the court judgment of 11 December 2003 and the complaint concerning the excessive
length of the second set of proceedings admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of delayed
enforcement proceedings;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the excessive length of the second
set of proceedings;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months, EUR 3,500 (three thousand five hundred euros) in respect
of pecuniary and non-pecuniary damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Angelika
Nußberger
Deputy Registrar President
