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FIFTH
SECTION
CASE OF RAISA TARASENKO v. UKRAINE
(Application
no. 43485/02)
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 Raisa Tarasenko 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. 43485/02) 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, Mrs Raisa Ilyinichna
Tarasenko (“the applicant”), on 22 November 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
5 December 2005 the Court decided to give notice of the application
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 1941 and lives in the town of Dniprodzerzhynsk.
- On
1 August 1999 the applicant's husband died due to the fault of an
employee of the Dniprodzerzhynskelektrotrans Municipal Enterprise.
- On
3 September 2001 the Bagaliyskiy District Court of Dniprodzerzhynsk
ordered the company to pay the applicant UAH 5,825.90
in compensation.
- On
26 June 2002 the Zavodskiy District Bailiffs' Service discontinued
the enforcement proceedings due to the debtor's lack of funds and the
applicant's refusal to take the debtor's property instead of the
money.
- On
17 June 2003 the company was declared bankrupt and the
liquidation proceedings were initiated against it.
- The
judgment remains unenforced.
II. RELEVANT DOMESTIC LAW
- 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 6 § 1 OF
THE CONVENTION
- The
applicant complained about the State authorities' failure to enforce
the judgment of the Bagaleyskiy District Court of Dniprodzerzhynsk of
3 September 2001. She invoked Article 6 § 1 of
the Convention, which reads as follows:
“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
- The
Government contended that the applicant had not exhausted domestic
remedies as she had not challenged the decision of the Bailiffs'
Service discontinuing the enforcement proceedings, she had not
resubmitted the writ of execution for the judgment of 3 September
2001 to the Bailiffs' Service, and she had not lodged a request with
the relevant commercial court to be included in the list of the
debtor's creditors in the course of bankruptcy proceedings against
the debtor. The Government therefore proposed that the application be
declared inadmissible.
- The
Court recalls that it has already dismissed the Government's
analogous contentions in similar cases (see, for instance, Romashov,
cited above, §§ 30-33, and Garkusha v. Ukraine,
no. 4629/03, §§ 18-20, 13 December 2005) and
finds no reason to reach a different conclusion in the present case.
- The
Court concludes that this part of the application raises issues of
fact and law under the Convention, the determination of which
requires an examination of the merits. It finds no ground for
declaring it inadmissible.
B. Merits
- In
their observations, the Government put forward arguments similar to
those in the case of Romashov v. Ukraine, contending that
there had been no violation of Article 6 § 1 of
the Convention (see Romashov, cited above, § 37).
- The
applicant disagreed.
- The
Court notes that to date the judgment of the Bagaleyskiy District
Court of Dniprodzerzhynsk of 3 September 2001 has remained unenforced
for more than five years.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in cases raising issues similar to the present
application (see, for example, Romashov, cited above,
§§ 42-46).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that she had no effective
domestic remedies for her complaint under Article 6 § 1 of the
Convention. She invoked Article 13 of the Convention, which
provide as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court refers to its reasoning in relation to Article 35 § 1
(paragraph 13 above), which is equally pertinent to the applicant's
Article 13 claim. Consequently, the Court finds that this
complaint is not manifestly ill-founded or indeed inadmissible on any
other ground cited in Article 35 of the Convention. It must therefore
be declared admissible.
B. Merits
- The
Government contended that the applicant had had effective channels of
complaint on the same basis that they had argued that the applicant
had not exhausted domestic remedies in respect of her complaint under
Article 6 § 1 of the Convention.
- The
Court refers to its findings (at paragraph 13 above) in the present
case concerning the Government's argument regarding domestic
remedies. For the same reasons, the Court concludes that the
applicant did not have an effective domestic remedy, as required by
Article 13 of the Convention, to redress the damage created by the
delay in the present proceedings. Accordingly, there has been a
breach of this provision.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant further complained that that the State did not take all
necessary measures to protect lives of its citizens, including her
and her late husband's lives. She invoked Article 2 § 1
of the Convention.
- The
Court considers that the facts of the present case do not disclose
any appearance of a violation of Article 2 of the Convention and that
this part of the application must be rejected as being manifestly
ill-founded pursuant to Article 35 §§ 3 and 4 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 the amount of the judgment debt (see paragraph 6
above) and EUR 1,000 by way of just satisfaction.
- The
Government maintained that the applicant had not substantiated the
latter claim.
- In
so far as the applicant claimed the amount awarded to her by the
judgment at issue, the Court considers that the Government should pay
her the outstanding debt in settlement of her pecuniary damage.
- As to the applicant's claim in respect of
non-pecuniary damage, the Court, making its assessment on an
equitable basis, as required by Article 41 of the Convention,
awards the applicant the requested amount of EUR 1,000.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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 applicant's complaints under
Articles 6 § 1 and 13 of the Convention
admissible, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 according to
Article 44 § 2 of the Convention, the judgment
debt still owed to her, as well as EUR 1,000 (one thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable, to be converted into the currency of the respondent State
at the rate applicable on the date of settlement;
(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.
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
