CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 29 mars 2007

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height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     FIFTH SECTION     CASE OF MIKHAYLOV v. UKRAINE     (Application no. 22986/04)       JUDGMENT     STRASBOURG   29 March 2007   This version was rectified on 26 May 2008 under Rule 81   of the Rules of Court.     FINAL     29/06/2007     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 Mikhaylov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mr   P. Lorenzen , President ,   Mrs   S. Botoucharova ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   R. Maruste ,   Mr   M. Villiger, judges ,   Mr   J.S. Phillips , Deputy Section Registrar , Having deliberated in private on 6 March 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 22986/04) 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 Viktor Aleksandrovich Mikhaylov (“the applicant”), on 14 June 2004. 2.     The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev. 3.     On 22 September 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 judgments 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 1973 and resides in the town of Krasniy Luch, Lugansk region, Ukraine. 5.     In November 1998 the applicant instituted proceedings against his former employer, the State “Pryvillya” group of companies ( Концерн «Привілля» ), challenging his dismissal and claiming salary arrears. After several examinations by different courts, on 7 March 2003 the Antratsytivskyy Town Court reinstated the applicant in his position and awarded him 5,137.51 [1] Ukrainian hryvnias (“UAH”) in salary arrears ( Рішення Антрацитівського міського суду ). The judgment remains unenforced. 6.     The applicant instituted another set of proceedings against the same defendant in the Krasnoluchskyy Town Court, claiming salary arrears. On 1   November 2000 the court awarded the applicant UAH 56.02 [2] ( Рішення Краснолуцького міського суду Луганської області ). The judgment remains unenforced. 7.     The applicant instituted several proceedings in the Krasnolutskyy Town Court against another of his former employers, the State “Imeni Izvestiy” mine ( ДВАТ шахта імені «Ізвєстій» ДХК «Донбасантрацит») , claiming salary arrears and other payments. On 26   October 2000, 13 February 2002, 10 February 2003 and 30 July 2003, the court awarded the applicant a total of UAH 10,466.47 [3] . 8.     By 10 September 2003 and 27 March 2006 the judgments of 26   October 2000 and 13 February 2002, respectively, were enforced in full. The applicant received UAH 2,852.88 [4] in enforcement of other judgments; the rest of amounts awarded remains unpaid. 9.     In 2003 the applicant instituted proceedings in the Krasnolutskyy Town Court against the Krasnolutskyy Town Bailiffs' Service, claiming compensation for the failure to enforce the judgments in his favour. On 16   October 2003 the court rejected the applicant's claim, finding no fault had been committed by the Bailiffs' Service, which had acted properly in trying to enforce the judgments. The court further noted that the debtors' property was in a tax lien and that, 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. On 12 February 2004 the Court of Appeal of the Lugansk Region upheld this judgment. 10.     On 26 June 2003 the “Pryvillya” group of companies was declared bankrupt. II.     RELEVANT DOMESTIC LAW 11.     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 ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 12.     The applicant complained about the lengthy non-enforcement of the judgments in his favour. He invoked Article 6   §   1 of the Convention and Article   1 of Protocol   No.   1. These Articles 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 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 ....” A.     Admissibility 13.     The Government submitted no observations on the admissibility of the applicant's complaints. 14.     The Court notes that the judgment of 26 October 2000 was enforced by 10 September 2003 that is more than six months before the date on which the application was submitted to the Court. It follows that this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for having been submitted out of time. 15.     The Court concludes that the remainder of the applicant's complaints under Article   6   §   1 of the Convention and Article   1 of Protocol   No.   1 about the delay in the enforcement of the judgments in his favour is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that these complaints are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 16.     The Government maintained that the applicant's right to have the judgments in his favour enforced had been never questioned. The Government further argued that the State could not be considered responsible for the debts of its enterprises and the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings. The length of the enforcement proceedings had been caused by the critical financial situation of the debtor companies and the Bailiffs' Service had performed all necessary actions and could not be blamed for the delay. The Government further submitted that the judgments of 26 October 2000 and 13 February 2002 had been enforced in full and the judgments of 10 February 2003 and 30 July 2003 – in part. 17.     The applicant disagreed. In particular, he argued that the Government failed to submit any decisions about the closure of the enforcement proceedings and therefore the judgments, including the judgments of 26 October 2000 and 13 February 2002, could not be considered as enforced. 18.     The Court notes that the Government have submitted sufficient proves to conclude that the amounts awarded to the applicant by the judgments of 26 October 2000 and 13 February 2002 had been paid to him. Therefore these judgments can be considered as enforced. 19.     The Court further notes that the other judgments in the applicant's favour have not been enforced for a considerable period of time; the longest delay being more than six years and four months. 20.     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). 21.     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. 22.     There has, accordingly, been a violation of Article   6   §   1 of the Convention and of Article   1   of Protocol   No.   1. II.   APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.     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 24.     The applicant claimed in respect of pecuniary damage UAH   50,353.35 [5] , including the amount of the judgments' debts still owed to him, and UAH 43,035 [6] in respect of non-pecuniary damage. 25.     The Government maintained that the applicant could have applied to the domestic courts claiming compensation for the loss of value of the amounts awarded. As he failed to do so his claim should be rejected. The Government further maintained that the amount of the non-pecuniary damage claimed by the applicant was exorbitant and unsubstantiated. 26.     Insofar as the applicant claimed the amounts awarded to him by the judgments at issue, the Court considers that the Government should pay him the outstanding debts (see paragraph 8) in settlement of his pecuniary damage. The Court dismisses the rest of the applicant's claims for pecuniary damage as they are unsubstantiated. The Court further considers that the applicant must have sustained non-pecuniary damage, and awards him, deciding on an equitable basis, EUR 2,600 in this respect. 27.     The Court further notes that it is undisputed that the State still has an outstanding obligation to enforce the non-pecuniary part of the judgment of 7 March 2003 in the applicant's favour. B.     Costs and expenses 28.     The applicant did not claim any costs and expenses occurred before the Court. C.     Default interest 29.     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 applicant's complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the judgment of 26 October 2000 inadmissible and the remainder of the application admissible [7] ; 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 (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, the judgments' debts still owed to him, as well as EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage 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.   5.     Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 29 March 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Stephen Phillips   Peer Lorenzen   Deputy Registrar   President [1] .     At the material time around 905.91 euros (“EUR”). [2] .     At the material time EUR 12.14 [3] .     At the material time EUR 2,192.83 [4] .     EUR 456.55 [5] .     EUR 8,058.18 [6] .     EUR 6,887 [7] .     Rectified on 26 May 2008. The words "inadmissible" and "admissible" have been interchanged.