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FIFTH
SECTION
CASE OF PETROVA v. UKRAINE
(Application
no. 33635/03)
JUDGMENT
STRASBOURG
11 January
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 Petrova 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 4 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33635/03) 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, Ms Galina Vasilyevna
Petrova (“the applicant”), on 23 September 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska, succeeded by Mr Y. Zaytsev.
- On
15 March 2005 the Court decided to communicate the
complaint under Article 6 § 1 of the Convention concerning the
non-enforcement of the judgment 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 1943 and lives in Chuguyev,
the Kharkiv region. She is a former employee of the OJSC
“Chuguyevskaya Toplivnaya Aparatura” (“the
Company,” ВАТ
“Чугуївська
паливна апаратура”).
At the material time the State owned 32.67% of the Company's shares.
The Company was therefore subject to the Law of 29 November 2001
“on the Introduction of a Moratorium on the Forced Sale of
Property.”
- The
background facts for the case are described in the case of
Solovyeva v. Ukraine (no. 32547/03, §§ 7-11,
13 December 2005).
- On
25 November 2002 the Chuguyev Court (Чугуївський
місцевий суд
Харківської
області) ordered
the Company to pay the applicant UAH 1,939
in salary arrears. This judgment became final and on 9 January 2003
the enforcement writ was transferred to the Chuguyev Bailiffs'
Service (Відділ
Державної
виконавчої
служби
Чугуївського
міського
управління
юстиції)
for enforcement.
- On
10 July 2006 the award was fully paid to the applicant.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law is summarised in the
judgments of Romashov v. Ukraine (no. 67534/01, §§
16-18, 27 July 2004) and Trykhlib v. Ukraine (no.
58312/00, §§ 25-32, 20 September 2005).
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicant introduced a new complaint under
Article 1 of Protocol No. 1 with regard to
the facts of the present case.
- In
the Court's view, the new complaint is not an elaboration of the
applicant's original complaint under Article 6 § 1
of the Convention, raised with the Court approximately two years
earlier, on which the parties have commented. The Court considers,
therefore, that it is not appropriate now to take this matter up (see
e.g., Zhmak v. Ukraine, no. 36852/03,
§§ 11-12, 29 June 2006).
II. ADMISSIBILITY
- The
applicant complained about the State authorities' failure to enforce
the judgment of 25 November 2002 in due time. She invoked
Article 6 § 1 of the Convention, which provides,
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. ...”
- The
Government raised objections, contested by the applicant, regarding
non-exhaustion of domestic remedies and the responsibility of the
State for the Company's debts, similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement of
judgments against the State-controlled companies (see e.g., among
many others, Solovyeva v. Ukraine, cited above, §§ 17
and 20-21). The Court considers that these objections must be
rejected for the same reasons.
- The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention about the delay in the enforcement of the judgment
of 25 November 2002 raises issues of fact and law under the
Convention, the determination of which requires an examination on the
merits. It finds no ground for declaring this complaint inadmissible.
The Court must therefore declare it admissible.
III. MERITS
- In
their observations on the merits of the applicant's complaint, the
Government contended that there had been no violation of
Article 6 § 1.
- The
applicant disagreed.
- The
Court notes that the judgment of 25 November 2002 remained
unenforced for three years and seven months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases, including the cases
concerning the same State-controlled debtor – the OJSC
“Chuguyevskaya Toplivnaya Aparatura” (see, for instance,
Solovyeva v. Ukraine, cited above, §§ 25-39 and
Kosarevskaya and Others v. Ukraine, nos. 29459/03, 4935/04 and
26996/04, §§ 29-32, 6 December 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.
IV. 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 UAH 7,000 (EUR 1,155) in respect of
non-pecuniary damage.
- The
Government submitted that these claims should be rejected.
- The
Court takes the view that the applicant has suffered some
non-pecuniary damage as a result of the violation found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant the sum of EUR 1,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 95.21 (EUR 16) for postal
expenses incurred before the Court and submitted copies of receipts
for the postal services.
- The
Government raised no objections against paying the aforementioned
sum.
- Regard
being had to the circumstances of the case and the information in its
possession, the Court awards the applicant EUR 16 under this
head.
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
(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, EUR 1,000
(one thousand euros) in respect of non-pecuniary damage and EUR 16
(sixteen euros) in costs and expenses to 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;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 11 January 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
