FIFTH SECTION
CASE OF KISLINSKIY v. UKRAINE
(Application no. 37039/03)
JUDGMENT
STRASBOURG
15 May 2008
FINAL
15/08/2008
This judgment may be subject to editorial revision.
In the case of Kislinskiy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Snejana Botoucharova,
Karel Jungwiert,
Volodymyr Butkevych,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 22 April 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 37039/03) 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 Nikolay Mikhaylovich Kislinskiy (“the applicant”), on 16 October 2003.
2. The Ukrainian Government (“the Government”) were represented by theirs Agent, Mrs Zoryana Bortnovska and Mr Yuriy Zaytsev.
3. On 9 September 2004 and on 11 January 2006 the Court decided to communicate to the Government the complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No.1 concerning the non-enforcement of a final court judgment given in the applicant’s favour. 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
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1930 and lives in the town of Novogrodivka, the Donetsk Region.
5. On 30 June 1998 the Novogrodivka City Court (hereafter “the City Court”) awarded the applicant UAH 2,550[1] against the Rosiya coal-mine (a State-owned enterprise) by way of compensation for delays in the payment of his occupational disease benefits. On 10 July 1998 the judgment became final and was sent to the Novogrodovka City Bailiffs’ Service (hereafter “the Bailiffs”) for compulsory enforcement.
6. On 20 February 2003 the City Court rejected the applicant’s further claim against the same coal-mine in December 2002. On 5 May 2003 the Donetsk Regional Court of Appeal upheld this decision. On 21 Mai 2004 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.
7. In early 2004 the applicant complained to the City Court about the Bailiffs’ alleged inactivity. On 30 April 2004 the City Court rejected the applicant’s complaint stating, inter alia, that no fault was attributable to the Bailiffs, who had undertaken all necessary measures to secure the execution of the June 1998 judgment, and that its non-enforcement was due to the moratorium on the forced sale of the property of State-owned enterprises. The City Court also indicated that the enforcement proceedings were further impeded by the decision of 25 February 2003 of the Ministry of Fuel and Energy (which controlled 100% of the Rosiya coal-mine) to wind up the enterprise and to transfer its assets to the Selidovvugillya State Company. The latter entity was designated as the judgment debtor by decision of the City Court of 12 December 2003.
8. On 25 November 2004 the enforcement proceedings were terminated as the judgment in the applicant’s favour had been enforced in full.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOLE No. 1
9. The applicant complained of the failure of the State authorities to execute the judgment of 30 June 1999 given in his favour. He alleged an infringement of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provide, in so far as relevant, as follows:
Article 6
“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 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility of the complaints
10. The Government submitted that the applicant could no longer be considered a victim for the purposes of Article 34 of the Convention, as the judgment had been enforced.
11. The applicant disagreed, stating that the decisions had remained unenforced for an unreasonably long time.
12. The Court recalls its case-law to the effect that, whilst the execution of the decision given in the applicant’s favour redressed the non-execution as such, it could not in itself remedy the undue length of the enforcement procedure (see, Romashov v. Ukraine, no. 67534/01, 27 July 2004 and Sokur v. Ukraine, no. 29439/02, § 27, 26 April 2005). The Court considers, therefore, that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by Article 6 § 1 and Article 1 of Protocol No. 1 in relation to the period during which the judgment in his favour remained unexecuted.
13. The Court considers, therefore, that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
14. In their observations, the Government contended that there had been no violation of the above provisions of the Convention in the applicant’s respect.
15. The applicant disagreed.
16. The Court notes that the judgment given in the applicant’s favour remained unenforced for six years and four months.
17. The Court recalls that it has already found violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in a number of similar cases (see, for instance, Romashov v. Ukraine, cited above, § 46; Dubenko v. Ukraine, no. 74221/01, §§ 47 and 51, 11 January 2005; Vasilenkov v. Ukraine, no. 19872/02, §§ 24-26, 3 May 2005).
18. 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.
19. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
20. Additionally, the applicant complained that the existing situation infringed his right to life under Article 2 § 1 of the Convention, given his low standard of living, the lack of adequate medical treatment and severe environmental nuisance arising from the industrial activities in the Donetsk Region. The applicant complained under Article 6 § 1 about the unfavourable outcome of the second set of proceedings instituted against the coal-mine. He also invoked Article 14 of the Convention.
21. Having regard to all the material in its possession, the Court finds that these complaints 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 rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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 and costs
23. The applicant claimed EUR 2,035 in respect of pecuniary damage, EUR 10,390 in compensation for inflation, EUR 7,673 in occupational disease benefits and EUR 6, 500 in respect of non-pecuniary damage. He also claimed EUR 30 for costs and expenses incurred before the Court.
24. The Government did not object to the pecuniary damage claim, but considered the remainder of the applicant’s claims exorbitant and exaggerated.
25. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable to award the applicant a global sum of EUR 4,000 in respect of pecuniary and non-pecuniary damage, costs and expenses.
B. Default interest
26. 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
1. Declares the complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 concerning the non-enforcement of a final court judgment given in the applicant’s favour 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;
3. 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 4,000 (four thousand euros) in respect of pecuniary and non-pecuniary damage, costs and expenses, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. Approximately 351 euros (“EUR”).
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