BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF IVASHCHISHINA v. UKRAINE
(Application
no. 43116/04)
JUDGMENT
STRASBOURG
7
December 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 Ivashchishina 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,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 13 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43116/04) 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, Ms Lyudmila Petrovna
Ivashchishina (“the applicant”), on 2 March 2004.
- The applicant was represented by Mr V. Bychkovskiy from
Miusinsk. The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
- On 8 November 2005 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Vakhrushevo, the Lugansk
region.
- On
26 February 2003 and 11 February 2004 the Krasnyy Luch
Court (Краснолуцький
міський суд
Луганської
області) awarded
the applicant UAH 3,823.21
and UAH 2,094.50,
respectively, in salary arrears and other payments against the State
Open Joint Stock Company “Yanivska” (ДВАТ
ЦЗФ
„Янівська”).
These judgments
became final and
the enforcement
writs were
transferred to
the Krasnyy Luch
Bailiffs' Service
(Відділ Державної
виконавчої
служби Краснолуцького
міського управління
юстиції) for
enforcement.
- In
July 2005 the applicant received the debt due to her by the
judgment of 11 February 2004. The judgment of
26 February 2003 remains unenforced.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgments of 26 February 2003 and 11 February 2004
in due time. She invoked Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which
provide, in so far 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 ....”
I. ADMISSIBILITY
- The
Government submitted no observations on the admissibility of the
applicant's complaints in respect of the non-enforcement of the
judgment of 26 February 2003. As regards the judgment of
11 February 2004, the Government raised objections,
contested by the applicant, regarding her victim status, similar to
those already dismissed in a number of the Court's judgments (see
e.g. among many others, Romashov v. Ukraine (no.
67534/01, §§ 23-27, 27 July 2004). The Court therefore
dismisses them on the same grounds.
- The
Court finds that 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 of 26 February 2003
and 11 February 2004 raise issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring these complaints
inadmissible. The Court must therefore declare them admissible.
II. MERITS
- In their observations on the merits of the applicant's
claims, the Government contended that there had been no violation of
Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1. The delays in the enforcement of the
judgments in the applicant's favour were due to the large number of
enforcement proceedings against the debtor and its financial
difficulties.
- The
applicant disagreed.
- The
Court notes that the delay in the enforcement of the judgment of
26 February 2003 has exceeded three years and nine months,
while the judgment of 11 February 2004 was enforced with a
delay of one year and five months.
- The Court recalls that it has already found violations
of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 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).
- 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.
- 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
- 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
- The
applicant claimed the unsettled judgment debt due to her and an
additional sum of UAH 400 (EUR 63) in compensation for
pecuniary damage. She also claimed UAH 4,000 (EUR 630) in
compensation for non pecuniary damage.
- The Government agreed to pay the unsettled debt and
submitted that the remainder applicant's claim for pecuniary damage
was unsubstantiated. As regards the applicant's claim for
non-pecuniary damage, the Government preferred to leave it to the
Court to determine the award.
- The
Court considers that the Government should pay the applicant the
unsettled judgment debt, which would constitute full and final
settlement of her claim for pecuniary damage. The Court further
considers that the applicant must have sustained non-pecuniary damage
as a result of the violations found. Having regard to the
circumstances of the case and the submissions of the parties, the
Court awards the applicant EUR 630 in this respect.
B. Costs and expenses
- The applicant did not submit any separate claim under
this head; the Court therefore makes no award in this respect.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the unsettled
debt still owed to her as well as EUR 630 (six hundred thirty
euros) in respect of non-pecuniary damage, to be converted into the
currency of the respondent State at the rate applicable on the date
of settlement, plus any tax that may be chargeable;
(b) 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.
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
