FIFTH SECTION
CASE OF VIKTOR TARASENKO v. UKRAINE
(Application no. 38762/03)
JUDGMENT
STRASBOURG
7 December 2006
FINAL
07/03/2007
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 Tarasenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 13 November 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38762/03) 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 Viktor Ivanovych Tarasenko (“the applicant”), on 22 November 2003.
2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
3. On 15 March 2005 the Court decided to communicate the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the lengthy non-enforcement of the judgment 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1954 and resides in the town of Novovolynsk, Volyn region, Ukraine.
5. In November 2000 the applicant instituted proceedings in the Novovolynskyy Town Court against his former employer, State Mining Company No.1 “Novovolynska” (Шахта №1 „Нововолинська”), for salary arrears and other payments due to him. On 11 December 2000 the court awarded the applicant 34,207.10[1] Ukrainian hryvnias (“UAH”) in compensation for industrial disease and in other payments (Рішення Нововолинського міського суду Волинської області).
6. On 12 January 2001 the Novovolynskyy District Bailiffs' Service (Відділ Державної виконавчої служби Нововолинського міського управління юстиції) initiated the enforcement proceedings.
7. By the letters of 19 February and 10 April 2002, and 23 December 2003, the Novovolynskyy District Bailiffs' Service informed the applicant that it was not possible to sell the debtor's property as, according to the Law on the Introduction of a Moratorium on the Forced Sale of Property, on 26 December 2001, a ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital had been introduced. It also stated that the debtor's property was in a tax lien.
8. In 2001-2004 the court judgment was enforced by instalments, the final amount being paid on 6 December 2004.
II. RELEVANT DOMESTIC LAW
9. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
10. Relying on Article 13 of the Convention, and Article 1 of Protocol No. 1 the applicant complained about the lengthy non-enforcement of the judgment given in his favour. These Articles provide, insofar as relevant, as follows:
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.”
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 ....”
11. The Court finds that the applicant's complaint about the lengthy non‑enforcement of the judgment given in his favour should also require examination under Article 6 § 1 of the Convention which reads 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. ...”
A. Admissibility
12. The Government raised objections regarding the applicant's victim status and exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (no. 67534/01, §§ 23-33, 27 July 2004). The Court considers that the present objections must be rejected for the same reasons.
13. The Court concludes that the applicant's complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of the Novovolynskyy Town Court 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. For the same reasons, the applicant's complaints under Article 13 of the Convention and Article 1 of Protocol No. 1 cannot be declared inadmissible.
B. Merits
14. The Government maintained that the judgment in the applicant's favour was enforced in full. The Government argued that the State could not be considered responsible for the debts of its enterprises. They further maintained that the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings and that the length of the enforcement proceedings had been caused by the critical financial situation of the debtor company. The Government contended that the Bailiffs' Service had performed all necessary actions and could not be blamed for the delay.
15. The applicant disagreed.
16. The Court notes that the judgment in the applicant's favour was not enforced for more than three years and eleven months.
17. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases like the present application (see, among others, Romashov v. Ukraine, cited above, §§ 42‑46; Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004).
18. Having examined all the materials submitted to it, 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 of Article 1 of Protocol No. 1.
20. The Court does not consider it necessary in the circumstances to rule on the same complaint under Article 13 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. 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
22. The applicant claimed UAH 30,000[2] in respect of pecuniary and non-pecuniary damage.
23. The Government maintained that the applicant's pecuniary and non-pecuniary claims were non-substantiated.
24. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,200 in respect of non-pecuniary damage.
B. Costs and expenses
25. The applicant also claimed UAH 174.97[3] for costs and expenses occurred before the Court.
26. The Government did not comment on the applicant's claims for costs and expenses.
27. The Court considers that the applicant has provided relevant bills for the amount claimed. The Court, therefore, awards the applicant EUR 30 in respect of costs and expenses.
C. Default interest
28. 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 application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;
4. Holds that it is not necessary to rule on the applicant's complaint under Article 13 of the Convention;
5. 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 1,230 (one thousand two hundred and thirty euros) in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable;
(b) that the above amount 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. At the material time around 7,096.63 euros (“EUR”)
[2]. Around EUR 4,876.17
[3]. Around EUR 30
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