FIFTH SECTION

CASE OF MAVRODIY v. UKRAINE

( Application no. 32558/04 )

JUDGMENT

STRASBOURG

7 June 2007

FINAL

07/09/2007

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 Mavrodiy v. Ukraine ,

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

Mr P. Lorenzen , President , Mrs S. Botoucharova , 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 deliberated in private on 15 May 2007 ,

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

PROCEDURE

1 . The case originated in an application (no. 32558/04) 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 Grigoriy Yakovlevich Mavrodiy (“the applicant”), on 31 August 2004 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev .

3 . On 15 May 2006 the Court decided to communicate the complaint under Article 6 § 1 of the Convention concerning the non-enforcement of the judgments in the applicants ' 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, Mr Grigoriy Yakovlevich Mavrodiy, is a Ukrainian national who was born in 1931 and lives in Mykolayi v. He wa s the only owner and director of the “Primula” private construction enterprise.

5 . On 24 June 1998 the Odessa Regional Arbitration Court ordered the Chornomorsk yi Housing Unit of the Odessa Military District ( Квартирно-експлуатаційна частина Чорноморського району Одеського військового округу) to pay the applicant ' s enterprise UAH 21,350 [1] under a construction contract . The judgment became final and the writ of execution was transferred to the Bailiffs ' S ervice for enforcement. However, i t was not enforced due to lack of funds o n the debtor ' s current account.

6 . On 26 December 2001 the Odessa Regional Commercial Court , upon the applicant ' s request, ordered the enforcement of the judgment of 24 June 1998 by attaching the debtor ' s property.

7 . On 14 November 2002 the writ of execution was returned to the applicant as the enforcement proceedings were terminated due to the debtor ' s lack of funds.

8 . On 23 December 2003 the Odessa Regional Commercial Court rejected the applicant ' s request to declare the Ministry of Defence a debtor in the enforcement proceedings. On 18 February 2004 the Odessa Commercial Court of Appeal upheld this ruling.

9 . In March 2004 the applicant lodged with the Kyiv City Commercial Court a claim against the Ministry of Defence and the Chornomorskyi Housing Unit seeking compensation for pecuniary and non-pecuniary damage caused by the failure to enforce the judgment of 24 June 1998. On 20 May 2004 the applicant ' s claim was left without consideration for failure to pay the court fee.

10 . The judgment given in the applicant ' s favour by the Odessa Regional Arbitration Court o n 24 June 1998 remains unenforced.

II. RELE VANT DOMESTIC LAW

11 . The relevant domestic law is summarised in the judgment s of Voytenko v. Ukraine (no. 18966/02, 29 June 2004) and Romashov v. Ukraine (no. 67534/01, 27 July 2004).

THE LAW

I. A LLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

12 . The applicant complained about the State authorities ' failure to enforce the judgment of 24 June 1998 in due time. He invoked Article 6 § 1 of the Convention, which provide s , 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. ... ”

A. Admissibility

13 . The Government raised objections, contested by the applicant, regarding exhaustion of domestic remedies similar to those already dismissed in a number of the Court ' s judgments regarding non-enforcement against the State institutions (see Voytenko v. Ukraine , cited above, §§ 27 ‑ 31 and Romashov v. Ukraine , cited above , § § 28 -3 2 ). The Court considers that these objections must be rejected for the same reasons.

14 . The Court concludes that the applicant ' s comp laint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgments of the Odessa Regional Arbitration Court raise s issue s of fact and law under the Convention, the determination of which requires an examination on the merits. It fi nds no ground for declaring th i s complaint inadmissible. The Court must therefore declare it admissible.

B. Merits

15 . In their observations, the Government contended that there had been no violation of the provisions of the Convention in the applicant ' s respect .

16 . The applicant s disagreed.

17 . The Court notes that the judgment in the applicant ' s favour remains unenforced for more than eight years and ten months .

18 . The Court recalls that it has already found violations of Article 6 § 1 of the Convention in a number of similar cases (see, for instance, Sokur v. Ukraine , cited above , §§ 36-37 and Sharenok v. Ukraine , no. 35087/02, § § 37-38, 22 February 2005 ) .

19 . Having examined all the material in its possession , 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.

20 . There has, accordingly, been a violation of Article 6 § 1 of the Convention.

II. OTHER COMPLAINTS

21 . The applicant complained under Article 3 of the Convention that the failure to enforce the judgment given in his favour caused deterioration of his health and bankruptcy of his company. He also complained under Article 6 § 1 of the Convention of an unfair hearing and the outcome of the proceedings instituted by him in 2003-2004.

22 . However, in the light of all the material s in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

23 . It follows that th i s part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

I II . 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 pecuniary damage UAH 70,000 [2] ( the judgment debt plus indexation and interest rate ) and UAH 50 ,000 [3] as compensation for non-pecuniary damage.

26 . The Government maintained the applicant ' s claims were exorbitant and un substantiated.

27 . In so far as the applicant claimed the amount awarded to h im by the judgment at issue, the Court considers that the Government should pay h im the outstanding debt (see paragraph 5 above) in settlement of his pecuniary damage . As to the remainder of the applicant ' s just satisfaction claim s , the Court , making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 2,600 ( two thousand and six hundred euros) in respect of non-pecuniary damage .

B. Costs and expenses

28 . The applicant did not submit any separate 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 as to non-enforcement of the judgment given in the applicant ' s favour admi ssible and the remainder of his complaints inadmissible;

2. Holds that there h as been a violation of Article 6 § 1 of the Convention ;

3 . 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 judgment ' s debt still owed to him as well as EUR 2,600 ( two thousand and six hundred euros) in respect of non-pecuniar y damage ;

( b ) that the above amounts 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 peri od plus three percentage points;

4 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 7 June 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] 1. Approximately EUR 4,477.11 .

[2] 1. EUR 11,173 .

[3] 2. EUR 7,980 .