CASE OF ALEKSEYENKO v. UKRAINE

FIFTH SECTION

CASE OF ALEKSEYENKO v. UKRAINE

(Application no. 44050/12)

JUDGMENT
 

STRASBOURG

16 May 2024

This judgment is final but it may be subject to editorial revision.

In the case of Alekseyenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 44050/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 July 2012 by a Ukrainian national, Mr Viktor Vladimirovich Alekseyenko (“the applicant”), who was born in 1963, lives in Novgorodskoye (since renamed Niu-York) and was represented by Ms O. Sibilyova, a lawyer practising in Kharkiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Acting Agent, Ms O. Davydchuk and subsequently by their then Agent, Mr I. Lishchyna;

the parties’ observations;

Having deliberated in private on 11 April 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present application concerns the non-enforcement of a domestic court’s decision rendered against a private party. The applicant complained under Articles 6 and 13 of the Convention as well as under Article 1 of Protocol No. 1 to the Convention.

2.  On 24 May 1999 the Dzerzhynsk Court of the Donetsk Region allowed a claim brought by the applicant against the collective enterprise Kostyantynivska Self-Supporting Auto-Transport Column (Костянтинівська госпрозрахункова автоколона – “the Auto-Transport Column”), finding the latter to be responsible for the applicant’s permanent second-degree invalidity and ordering it to pay the applicant the amount of 341.53 Ukrainian hryvnias (UAH) every month indefinitely for his lost income and additional home care.

3.  The enforcement of the above-mentioned decision ceased on 21 December 2002. The applicant subsequently brought a claim against the Bailiffs Service and on 25 September 2006 the Dzerzhynsk Court of the Donetsk Region allowed that claim, finding that the Bailiffs Service’s inaction had been unlawful. It found that the Bailiffs Service had failed to verify whether the debtor had had any property, that the Auto-Transport Column had transferred 45 vehicles without payment to the Kostyantynivska District Consumer Society (Костянтинівське райпо) and that real estate belonging to it had been sold in May 2004. It was only in November 2004 that the Bailiffs Service had asked the State Real-Estate Bureau for information about any property owned by the debtor. Ten days later the Bailiffs Service had attached the debtor’s bank account. That decision was not appealed against and became final.

4.  On 23 April 2008 the Donetsk Circuit Administrative Court allowed a claim brought by a local tax inspector and terminated the activity of the Auto‑Transport Column as a legal person.

5.  In March 2008 the applicant, relying on the above-mentioned decision of 25 September 2006, initiated court proceedings against the local Bailiffs Service and the local office of the State Treasury Department seeking compensation for pecuniary and non-pecuniary damage incurred owing to the bailiffs’ inactivity.

6.  Following several remittals of the case, on 3 December 2009 the Dzerzhynsk Court of the Donetsk Region allowed the applicant’s claim for non-pecuniary damage but rejected the claim for pecuniary damage, finding that under the applicable law the Bailiffs Office could not be ordered to pay an amount that had been awarded by a court decision against a third party as a penalty for its failure to enforce that court decision in a timely manner.

7.  On 29 March 2010 and on 26 January 2012 the Donetsk Regional Court of Appeal and the Higher Specialised Civil and Criminal Court respectively overturned in part the above decision, rejecting the applicant’s claim also in respect of non-pecuniary damage. The reasoning of the courts’ decisions was based on the fact that the Dzerzhynsk Court of the Donetsk Region had declared the actions of the Bailiffs Service to have been unlawful in the above-mentioned decision of 25 September 2006 and that that finding had constituted sufficient just satisfaction for the applicant’s claim in respect of non-pecuniary damage.

THE COURT’S ASSESSMENT

8.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9.  The general principles concerning the obligation of a State to assist in the enforcement of a court decision rendered against a private party have been summarised in Scollo v. Italy (28 September 1995, § 44, Series A no. 315-C); Fuklev v. Ukraine (no. 71186/01, § 84, 7 June 2005); Ruianu v. Romania (no. 34647/97, § 66, 17 June 2003); and Fociac v. Romania (no. 2577/02, § 70, 3 February 2005).

10.  In the present case, the applicant complained that the domestic authorities had not assisted him with the enforcement of the decision of the Dzerzhynsk Court of the Donetsk Region dated 24 May 1999 rendered against the Auto-Transport Column.

11.  The Court observes that the enforcement of the decision in question ended in December 2002. On 25 September 2006 the Dzerzhynsk Court of the Donetsk Region found that the lack of action by the Bailiffs Service had been unlawful (see paragraph 3 above). That decision was not appealed against and became final. The debtor was liquidated in 2008 (see paragraph 4 above).

12.  The Court relies on the finding of the domestic courts that between December 2002 and September 2006 there was a lack of action by the Bailiffs Service or that its actions had been inadequate. The Court, however, cannot concur with the conclusion of the Donetsk Regional Court of Appeal and the Higher Specialised Civil and Criminal Court that that finding constituted sufficient just satisfaction for the applicant’s claim in respect of non‑pecuniary damage (see paragraph 7 above). The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, that there has been a breach of the Convention and then afforded redress for that breach (see, for instance, Murtić and Ćerimović v. Bosnia and Herzegovina, no. 6495/09, § 23, 19 June 2012). The applicant was not provided with the appropriate redress; therefore, he can still claim to be a victim of the failure of the State to abide by its obligation to provide the applicant with assistance in the enforcement of the decision of 24 May 1999.

13.  There has accordingly been a violation of Article 6 § 1 of the Convention.

14.  The applicant also complained under Article 13 of the Convention and Article 1 of Protocol No 1 to the Convention. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; Orašanin v. Croatia [Committee], no. 24811/16, § 19, 21 March 2023).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

15.  The applicant claimed 47,321.62 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. He submitted no claim in respect of costs and expenses.

16.  The Government objected to the above amounts.

17.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 2,100 in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable, in respect of 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;

Done in English, and notified in writing on 16 May 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Carlo Ranzoni
 Deputy Registrar President