POZHAROV proti Ukrajině

FIFTH SECTION

DECISION

Application no. 23063/02
by Viktor Ivanovich POZHAROV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 6 June 2006 as a Chamber composed of:

Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 30 May 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having regard to the observations on the admissibility of the case submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Viktor Ivanovich Pozharov, was a Ukrainian national, who was born in 1941 and resided in the city of Simferopol, the Autonomous Republic of Crimea, Ukraine. He died on 6 June 2004. On 9 September 2004 his wife lodged a motion with the Court seeking to succeed her deceased husband in the proceedings before it. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Defamation proceedings in the applicant’s case

The applicant used to be a director of the “Mezhraytoplivo” company in Simferopol. On 27 July 1995 he was dismissed from his position by an order from T.V.G (a private person) for abuse of power and for violations of the law.

In February 1999 the applicant instituted defamation proceedings in the Kyiv District Court of Simferopol against the Crimean State Company “Krymtoplivo” (“KT”) and T.V.G. (former director of the KT) seeking UAH 50,000 in compensation from each of the defendants for non-pecuniary damage for disseminating untrue information about his activities.

On 4 March 1999 the Kyiv District Court of Simferopol allowed his claims in part and ordered the KT and T.V.G. to pay the applicant UAH 5,000 and UAH 1,000, respectively, in compensation for non-pecuniary damage. It also found that the information disseminated by the defendants in the proceedings and contained in letters and an article published in the “Krymskoe Vremya” newspaper was untruthful. It further ordered the KT to rectify this information, disseminated by it in writing in 1995-96, for the heads of the relevant governmental bodies who had received untruthful information about the applicant, within a month, and to apologise to the applicant.

On 21 July 1999 the Supreme Court of the Autonomous Republic of the Crimea (Supreme Court of the ARC) allowed the appeal in cassation lodged by T.V.G. and quashed this decision and remitted the case for a fresh reconsideration.

On 12 August 1999 the Supreme Court of the ARC (renamed after June 2001 the Court of Appeal of the ARC; the “Court of Appeal”) refused to challenge this decision in the course of supervisory review proceedings as requested by the applicant.

On 29 November 2000 the Kyiv District Court of Simferopol allowed the applicant’s claims in part and ordered the KT and T.V.G. to pay the applicant UAH 5,000 and UAH 1,000, respectively, in compensation for non-pecuniary damage. It also found that the information contained in the letters and the article published in “Krymskoe Vremya” was untruthful. It further ordered the KT to send letters of rectification of this information to the heads of the governmental bodies who had received untruthful information about the applicant, within two weeks, and to offer written apologies to the applicant.

On 16 January 2001 the Kyiv District Court of Simferopil gave an additional judgment in the case, awarding the applicant UAH 824 in costs and expenses.

On 4 December 2001 the Supreme Court, hearing the case under the new cassation procedure, rejected the applicant’s appeal in cassation as being unsubstantiated.

2. Enforcement proceedings in the applicant’s case

On 21 August 1999 the KT was liquidated. The assets of the KT were transferred to the Ministry of Finances of the ARC.

On 23 and 27 April 2001 a part of its assets were seized by the State Bailiffs’ Service. The remainder of the KT’s assets were written off in the Ministry’s financial balance as they were useless.

On 5 March 2001 T.V.G. paid the applicant UAH 1,000 in compensation. On 12 February 2001 he offered the applicant the written apologies.

On 31 May 2001 and on 11 September 2002 T.V.G was fined for his failure to comply with the court’s judgment of 29 November 2000, as he had failed to inform the third parties of the untruthful information disseminated by him.

On 3 March 2001 the Bailiffs’ Service of the Kyiv District of Simferopil instituted enforcement proceedings with regard to the compensation of UAH 5,000 due to the applicant from the KT (the debtor).

On 14 November 2002 the Kyiv District Bailiffs’ Service of Simferopol terminated the enforcement proceedings in the case.

In 2004 the applicant instituted proceedings against the bailiffs of the Kyiv District Bailiffs’ Service of Simferopol for their allegedly unlawful termination of the enforcement proceedings in the case.

On 3 June 2004 the Kyiv District Court of Simferopol declared the order of 14 November 2002 null and void. The court ordered the bailiffs to resume the proceedings concerning enforcement of the judgment of 29 November 2000.

The applicant complained to the Kyiv District Bailiffs’ Service of Simferopol, the Prosecutor’s Office and the Ministry of Justice of the ARC to accelerate the enforcement of the judgment of 29 November 2000.

The Government informed the Court that the applicant has received UAH 376. The rest of the judgment remains unenforced.

3. Proceedings against the bailiffs instituted by T.V.G.

On 31 May 2001 the State Bailiffs’ Service imposed a UAH 170 fine on T.V.G. for his failure to comply with the judgment of 29 November 2000. T.V.G. instituted proceedings in the Kyiv District Court of Simferopol against the Kyiv District Bailiffs’ Service asking that it quash the decision to impose a fine on him.

On 13 July 2001 the court found against T.V.G. It further noted that according to the judgment of 29 November 2000 the KT and T.V.G. were obliged to rectify untrue information about the applicant jointly.

On 6 March 2002 the Court of Appeal upheld the judgment of 13 July 2001. On 9 October 2002 the Supreme Court rejected T.V.G.’s appeal in cassation as being unsubstantiated.

4. Proceedings for interpretation of the judgment of 29 November 2000

In September 2001 T.V.G. lodged a complaint with the Kyiv District Court of Symferopol seeking interpretation of the judgment of 29 November 2000 as he alleged that he could not understand how it should have been enforced.

On 20 September 2001 the court refused to consider his claims as from its point of view it was quite clear that the KT and T.V.G. were to rectify information jointly and T.V.G. was evading complying with the judgment at the time when he was a director of KT.

On 27 March and 16 October 2002 the Court of Appeal and the Supreme Court, respectively, rejected T.V.G.’s appeal in cassation.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the judgment of 29 November 2000 had not been enforced for a lengthy period of time. He also alleged an infringement of Article 1 of Protocol No. 1 as a result of the non-enforcement of the court judgment.

THE LAW

1. As to the locus standi of Mrs Pozharova

The applicant died in 6 June 2004. On 9 September 2004 his wife lodged a motion with the Court seeking to succeed her deceased husband in the proceedings before it.

The Government expressed no objections as to the locus standi of the applicant’s heir, moreover, they have accepted the friendly settlement declaration signed by the applicant’s widow.

The Court notes that the present application also concerns a property right which is, in principle, transferable to the heirs, and that there is a close relative of the applicant who wishes to pursue the case. In these circumstances, the Court considers that the applicant’s widow has standing to continue the present proceedings instead of the applicant.

2. Friendly settlement

On 3 April 2006 the Court received the following declaration, signed by the applicant’s widow:

“I, Mrs Yekaterina Mikhaylovna POZHAROVA, note that the Government of Ukraine are prepared to enforce in full the judgment of 29 November 2000 in my favour as the heir of Mr Viktor Ivanovich Pozharov, as well as to pay me ex gratia the sum of EUR 2,440 with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

The sum of EUR 2,440 will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the [decision taken by the Court pursuant to Article 37 § 1] of the European Convention on Human Rights. 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.

I accept the proposal and waive any further claims against Ukraine in respect of the facts of this application. I declare that this constitutes a final resolution of the case.

This declaration is made in the context of a friendly settlement which the Government and I have reached.”

On 3 April 2006 the Court received the following declaration from the Government:

“I, Yuriy ZAYTSEV, Government Agent before the European Court of Human Rights, declare that the Government of Ukraine offer to enforce in full the judgement of 29 November 2000 in favour of Mrs Yekaterina Mikhaylovna Pozharova, the heir of Mr Viktor Ivanovich Pozharov, as well as to pay her ex gratia the sum of EUR 2,440 with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

The sum of EUR 2,440 will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the [decision taken by the Court pursuant to Article 37 § 1] of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen
Registrar President