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FIFTH
SECTION
CASE OF TSARUK v. UKRAINE
(Application
no. 42476/04)
JUDGMENT
STRASBOURG
14
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 Tsaruk 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 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42476/04) 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, Mrs Valentina Grigoryevna
Tsaruk (“the applicant”), on 19 July 2004.
- The
applicant was represented before the Court by Mr V. Bychkovskiy.
The Ukrainian Government (“the Government”) were
represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
15 March 2005 the Court decided to communicate 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 Krasnyy Luch,
Lugansk region, Ukraine.
- In
2003 the applicant instituted proceedings in the Krasnolutskyy Town
Court against her former employer, the Knyagyninska State Mining
Company (Шахта
«Княгинінська»
ДХК
«Донбасантрацит»),
for salary arrears and compensation for moral damage. On 29 October
2003 the court awarded the applicant 2,479.19
Ukrainian hryvnias (“UAH”) (Рішення
Краснолуцького
міського суду
Луганської
області).
- In
December 2003 the Krasnolutskyy Town Bailiffs' Service (Міський
відділ Державної
виконавчої
служби Красно
луцького міського
управління
юстиції) initiated
the enforcement proceedings.
- By letter of 2 June 2004, the Bailiffs' Service
informed the applicant that the debtor's accounts had been seized but
that it was impossible to deal in the debtor's property because the
debtor was a State enterprise.
- On
25 March 2005 the Lugansk Regional Commercial Court initiated
bankruptcy proceedings against the debtor enterprise.
- The
applicant received UAH 1,386.34; according to the applicant, the rest
of the debt remains unpaid.
II. RELEVANT DOMESTIC LAW
10. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
- The
applicant complained about the length of the enforcement of the
judgment in her favour. She 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 ....”
I. ADMISSIBILITY
- The
Government raised objections regarding the exhaustion of domestic
remedies similar to those which the Court has already dismissed in
the case of Romashov v. Ukraine (cited
above, §§ 28-32). The Court considers that the
present 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 the Krasnolutskyy Town Court 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 this complaint
inadmissible. For the same reasons, the applicant's complaint under
Article 1 of Protocol No. 1 cannot be declared
inadmissible.
II. MERITS
- The Government maintained that the right of the
applicant to have a judgment in her favour enforced has been never
questioned. The Government further maintained that the limitations of
this right in the present case were aimed at the protection of the
public interests and did not breach the very essence of the right in
question. The Government argued that the State could not be
considered responsible for the debts of its enterprises and,
consequently, the responsibility of the State
was limited to the organisation and proper conduct of enforcement
proceedings only. The Government contended that the Bailiffs'
Service had performed all necessary actions and could not be blamed
for the delay. The Government finally maintained that the length of
the enforcement in the present case was caused by a difficult
financial situation of the debtor enterprise and could not be
considered as unreasonable.
- The
applicant disagreed.
- The Court notes that the judgment in the applicant's
favour has not been enforced for more than two years and eleven
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 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).
- 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.
- 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 in respect of pecuniary damage
the amount of the judgment debt, and EUR 1,000 per year of
non-enforcement of this judgment as non-pecuniary damage.
- The
Government maintained that the judgment in the applicant's favour was
enforced in part, the remaining debt being UAH 1,092.85. The
Government further maintained that the applicant's non-pecuniary
claims were exorbitant and non-substantiated.
- 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 (see paragraph 9
above) in settlement of her pecuniary damage. 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 800 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed costs and expenses without indicating any
particular amount.
- The
Court considers that the applicant has not provided any
substantiation of her costs and expenses claimed; therefore, it 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;
- 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
debt still owed to her as well as EUR 800 (eight 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
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
