FIFTH SECTION

CASE OF POPOV v. UKRAINE

(Application no. 23892/03)

JUDGMENT

STRASBOURG

14 December 2006

FINAL

14/03/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

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In the case of Popov v. Ukraine,

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

Mr P. Lorenzen, President
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs M. Tsatsa-Nikolovska
 Mr J. Borrego Borrego
 Mrs R. Jaeger, 
 Mr M. 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. 23892/03) 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 Leonid Mikhaylovich Popov (“the applicant”), on 15 July 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 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 1946 and resides in the town of Zhovti Vody, Dnipropetrovsk region, Ukraine.

5.  On an unspecified date the applicant instituted proceedings in the Zhovtovodskyy Town Court of Dnipropetrovsk Region against his employer, a State-owned company, the Zhovti Vody Construction Department (Жовтоводське управління будівництва), in order to receive salary arrears and other payments.

6.  On 21 December 2000 the court found for the applicant and awarded him 5,329.301 Ukrainian hryvnias (“UAH”) (Рішення Жовтоводського міського суду).

7.  On 19 January 2001 the Zhovti Vody Town Bailiffs' Service (Відділ Державної виконавчої служби Жовтоводського міського управління юстиції) initiated the enforcement proceedings.

8.  On an unspecified date the applicant instituted new proceedings in the same court against the same enterprise for further payments and compensation.

9.  On 20 February 2002 the court found for the applicant and awarded him UAH 2,093.492.

10.  The applicant received UAH 650, but, according to him, the rest of the awards remain unpaid.

11.  By letter of 4 April 2003, the Bailiffs' Service informed the applicant that the enforcement proceedings had been stayed because of the bankruptcy proceedings initiated against the debtor by a decision of 27 December 2001 of the Commercial Court of the Dnipropetrovsk Region. The Bailiffs' Service also stated 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.

12.  By the decree of 5 October 2004 the Ministry of Fuel and Energy of Ukraine liquidated the debtor company.

II.  RELEVANT DOMESTIC LAW

13.  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 4 OF THE CONVENTION

14. The applicant complained about a violation of Article 4 § 1 of the Convention, referring to the fact that he was forced to work without receiving remuneration. The Court notes that the applicant performed his work voluntarily and his entitlement to payment has never been denied. The dispute thus involves civil rights and obligations, but does not disclose any element of slavery or forced or compulsory labour within the meaning of this provision (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). In these circumstances, the Court considers that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

15.  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

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 Zhovtovodskyy 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.

B.  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.

19.  The applicant did not comment on the Government's observations.

20.  The Court notes that the judgments in the applicant's favour have not been enforced for more than five years and ten months and for more than four years and eight months, respectively.

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, among others, Romashov v. Ukraine, cited above, §§ 42-46; Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July 2004).

22.  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.

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 in respect of compensation for pecuniary damage the amount of the judgments' debts recalculated in accordance with the inflation rate in 2004-2005, and compensation for non-pecuniary damage without specifying the exact amount.

26.  The Government agreed with the applicant's claims and submitted that the pecuniary damage was equivalent to UAH 6,772.79 which corresponded to the debts remaining to be paid to the applicant.

27.  Insofar as the applicant claimed the amount awarded to him by the judgments at issue, the Court considers that the Government should pay him the outstanding debts3 in settlement of his pecuniary damage as agreed by them. As to the remainder of the applicant's just satisfaction claims, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 2,600 in respect of non-pecuniary damage.

B.  Costs and expenses

28.  The applicant did not submit any claim under this head. The Court therefore makes no award.

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 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 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 claims.

Done in English, and notified in writing on 14 December 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 1,078.10 euros “EUR”


2 At the material time around EUR 467.54


3 Last known to the Court to be UAH 6,772.79 (currently around EUR 1,100.07)



POPOV v. UKRAINE JUDGMENT


POPOV v. UKRAINE JUDGMENT