GRISHA proti Ukrajině

FIFTH SECTION

CASE OF GRISHA v. UKRAINE

(Application no. 1535/03)

JUDGMENT

STRASBOURG

10 August 2006

FINAL

10/11/2006

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 Grisha 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 J. Borrego Borrego, judges,
and Mrs C. Westerdiek, Section Registrar,

Having deliberated in private on 10 July 2006,

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

PROCEDURE

1. The case originated in an application (no. 1535/03) 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 Anatoliy Fedorovich Grisha (“the applicant”), on 9 November 2002.

2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V.Lutkovska and Mr Y.Zaytsev.

3. On 23 November 2004 the Court decided to communicate the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the 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.

4. On 1 April 2006 this case was assigned to the newly constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1939 and currently resides in the town of Novogrodovka, Donetsk region, Ukraine.

6. In 2000 and 2001, respectively, the applicant instituted two sets of proceedings in the Novogrodovskiy Town Court against the Novogrodovskaya Mining Company No. 1/3 - a State-owned enterprise - to recover unpaid compensation for health damage.

7. On 4 October 2000 the court awarded the applicant UAH 9,999.90[1] in such compensation.

8. By another judgment of 10 July 2001 the same court awarded the applicant UAH 32,156.50[2] in compensation for health damage.

9. In October 2001 the applicant instituted proceedings in the Novogrodovskiy Town Court against the Bailiffs’ Service for failure to enforce the judgments in his favour. On 19 December 2001 the court found against the applicant, finding no fault on the part of the bailiff. On 8 April 2002 the Court of Appeal of the Donetsk Region upheld the judgment of the first-instance court. On 6 August 2002 the judge of the Novogrodivskyi Local Court returned the applicant’s appeal in cassation as it had been submitted too late.

10. In February 2003 the Novogrodovskaya Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, the enforcement proceedings were transferred to the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции).

11. The applicant instituted proceedings in the Selidovskiy Town Court of the Donetsk region against the Selidovskiy Town Bailiffs’ Service claiming compensation for material and moral damage caused to him by the non-enforcement of the judgments in his favour. On 27 December 2004 the court found against the applicant. On 11 March 2005 the Court of Appeal of the Donetsk Region upheld the first instance court decision. The applicant appealed against these decisions in cassation. Proceedings are still pending.

12. The Government informed the Court that the applicant has received UAH 25,779.64; the rest of the debt awarded to the applicant remains unpaid.

II. RELEVANT DOMESTIC LAW

13. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).

THE LAW

I. ADMISSIBILITY

A. Complaint under Article 2 § 1 of the Convention

14. 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 Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland (dec.), no. 32734/96, 20 April 1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.1

15. The applicant complained about the length of the 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 ....”

16. The Government submitted no observations on the admissibility of the applicant’s complaints.

17. The Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgments of the Novogrodovskiy 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 complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible.

II. MERITS

18. The Government 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 and the energy sector of the Ukrainian economy in general. The Government contended that the Bailiffs’ Service performed all necessary actions and cannot be blamed for the delay. The regularity of the enforcement proceedings in the present case was confirmed by the domestic courts. The Government argued that the State could not be considered responsible for the debts of its enterprises and that the State annually allocated substantial amounts from its budget to cover part of the disability allowances and other compensatory payments to the workers in the mining industry.

19. The applicant disagreed.

20. The Court notes that the judgments in the applicant’s favour have not been enforced for more than five years and nine months.

21. 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, Sokur v. Ukraine, cited above, §§ 30-37; Shmalko v. Ukraine, cited above, §§ 55-57).

22. Having examined all the material 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.

23. There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. 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

25. The applicant claimed EUR 56,235 in respect of pecuniary and non-pecuniary damage.

26. The Government maintained that the applicant has not substantiated his claims.

27. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

28. However, in so far as the judgments in the applicant’s favour have not been enforced in full (paragraph 12 above), the Court considers that, if the Government were to pay the remaining judgments debt owed to the applicant, it would constitute full and final settlement of his claim for pecuniary damage.

29. The Court further considers that the applicant must have sustained non-pecuniary damage, and awards him EUR 2,300 in this respect.

B. Costs and expenses

30. The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect.

C. Default interest

31. 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 complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 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 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 debt still owed to him, as well as EUR 2,300 (two thousand three hundred euros) in respect of non-pecuniary damage;

(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, plus any tax that may be chargeable;

(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 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President

[1] At the material time around 2,091 euros (EUR)

[2] At the material time around EUR 7,056.50.