FIFTH SECTION
CASE OF Yuriy IVANOV v. UKRAINE
(Application no. 40132/02)
JUDGMENT
STRASBOURG
14 December 2006
FINAL
23/05/2007
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 Yuriy Ivanov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 20 November 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40132/02) 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 Yuriy Gennadyevich Ivanov (“the applicant”), on 25 October 2002.
2. The applicant was represented by Mr P. Kukta. The Ukrainian Government (“the Government”) were represented their Agent, Mrs V. Lutkovska.
3. On 24 March 2005 the Court decided to communicate the application 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 1971 and lives in the town of Dniprodzerzhynsk.
5. In 2002 the applicant instituted proceedings in the Labour Disputes Commission against the Agrofos State Enterprise (the “ASE”), seeking recovery of salary arrears and compensation. By decision of 26 February 2002, the Labour Disputes Commission allowed the applicant's claims and ordered the ASE to pay him UAH 3,429.09[1] in salary arrears and other payments.
6. On 18 July 2002 the applicant instituted proceedings in the Bagaliyskyy District Court of Dniprodzerzhynsk against the ASE, seeking recovery of salary arrears and compensation. On 23 August 2002 the court left the applicant's claim without consideration for failure to attend the hearings, of which the applicant had been informed in advance. The applicant did not appeal against this decision.
7. On 5 September 2002 the applicant lodged similar claims with the same court against the ASE. By decision of 26 September 2002, the court awarded the applicant UAH 3,842.86[2] in salary arrears and other payments.
8. On 10 April and 1 October 2002 the Bagaliyskyy District Bailiffs' Service of Dniprodzerzhynsk instituted enforcement proceedings concerning the decisions of 26 February and 26 September 2002, respectively.
9. On 5 August 2002 the Ministry of Fuel and Energy of Ukraine liquidated the ASE and established the Joint Stock Company “Dniprovskyy Zavod Mineralnyh Dobryv” (the “DZMD”) – in which the State held 40% of the share capital – as the ASE's successor.
10. On 24 March 2003 the applicant lodged with the Bagaliyskyy District Court a criminal law complaint against the Bailiffs' Service. By letter of 2 April 2003, the President of the court denied jurisdiction to consider the applicant's complaint.
11. On 2 February 2004 the Bailiffs' Service informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the DZMD and that the procedure for the forced sale of assets belonging to the debtor company had been blocked by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 29 November 2001. The Bailiffs' Service further informed the applicant that the DZMD's property has been in a tax lien since 1 March 2004.
12. On 7 April 2004 the Commercial Court of the Dnipropetrovsk Region commenced bankruptcy proceedings against the DZMD. According to the Government, these proceedings are still pending.
13. On 29 April 2004 the applicant instituted civil proceedings in the Bagaliyskyy District Court against the Bailiffs' Service, seeking compensation for failure to enforce the decisions in his favour. On 29 November 2004 the court rejected the applicant's claim. The applicant did not appeal against this decision.
14. On 2 September 2004 the decision of 26 February 2002 was enforced in full. The decision of 26 September 2002 remains to a large extent (UAH 1,059[3]) unenforced.
II. RELEVANT DOMESTIC LAW
15. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. ADMISSIBILITY
A. Complaint about the length of the non-enforcement of the decisions of 26 February and 26 September 2002
16. The applicant complained about the State authorities' failure to enforce the decision of the Labour Disputes Commission of 26 February 2002 and the decision of the Bagaliyskyy District Court of Dniprodzerzhynsk of 26 September 2002 in due time and, in respect of the latter decision, in full. He invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which 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.”
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 ....”
17. The Government contended that the applicant had not exhausted domestic remedies as he had neither appealed against the decision of 29 November 2004, nor lodged a request with the Commercial Court of the Dnipropetrovsk Region to be included in the list of the DZMD's creditors in the course of bankruptcy proceedings against the latter. The Government therefore proposed that the application be declared inadmissible or struck out of the Court's list of cases.
18. The Court recalls that it has already dismissed the Government's analogous contentions in similar cases (see, for instance, Garkusha v. Ukraine, no. 4629/03, §§ 18-19, 13 December 2005) and finds no reason to reach a different conclusion in the present case.
19. The Court concludes that this part of the application raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring it inadmissible.
B. Other complaints
20. The applicant further complained in substance under Article 6 § 1 of the Convention about the unfairness, outcome and length of the proceedings against the Bailiffs' Service.
21. In so far as the applicant complained about the outcome and unfairness of the impugned proceedings, the Court observes that he did not appeal to the Dnipropetrovsk Regional Court of Appeal against the decision of 29 November 2004. The applicant accordingly cannot be regarded as having exhausted all the domestic remedies available to him under Ukrainian law. As to the applicant's complaint about the length of these proceedings, the Court notes that they lasted around seven months. This period does not exceed a reasonable time with the meaning of Article 6 § 1 of the Convention and, therefore, this complaint is manifestly ill-founded. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
II. MERITS
22. In their observations on the merits of the applicant's complaints about the length of the non-enforcement of the decisions of 26 February and 26 September 2002, the Government put forward arguments similar to those in the cases of Romashov v. Ukraine and Voytenko v. Ukraine, contending that there had been no violation of either Article 6 § 1 of the Convention or Article 1 of Protocol No. 1 (see Romashov, cited above, § 37, and Voytenko v. Ukraine, no. 18966/02, 29 June 2004, § 37).
23. The applicant disagreed.
24. The Court notes that the decision of the Labour Disputes Commission of 26 February 2002 remained unenforced for around two years and five months, while the decision of the Bagaliyskyy Distrcit Court of Dniprodzerzhynsk of 26 September 2002 has remained, to date, unenforced for more than four years.
25. 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 raising issues similar to the present application (see, for instance, Romashov, cited above, §§ 42-46, and Voytenko, cited above, §§ 53-55).
26. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing 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 and Article 1 of Protocol No. 1.
27. The Court does not find it necessary in the circumstances to examine the same complaint under Article 13 of the Convention (see Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December 2004).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. 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.”
29. The applicant did not submit a claim for just satisfaction within the time-limit fixed by the Court. Accordingly, the Court makes no such award (Rule 60 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant's complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about the delay in the enforcement of the decisions in his favour admissible, and the remainder of the application inadmissible;
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;
4. Holds that it is not necessary to examine the applicant's complaint under Article 13 of the Convention.
Done in English, and notified in writing on 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. Around 772 euros – “EUR”.
[2]. Around EUR 765.
[3]. Around EUR 175.
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