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FIFTH
SECTION
CASE OF MOVSESYAN v. UKRAINE
(Application
no. 31088/02)
JUDGMENT
STRASBOURG
21
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 Movsesyan v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 27 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31088/02) 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 Russian national, Mr Arshaluys Yegishovich
Movsesyan (“the applicant”), on 26 July 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska succeeded by
Mr Y. Zaytsev.
- On
21 January 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 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.
- In
accordance with Article 36 § 1 of the Convention, the
Russian Government were invited to exercise their right to intervene
in the proceedings, but they declined to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1936 and lived in Ryazan, the Russian
Federation. He died on 1 August 2005. By letter of
14 January 2006, Mrs Movsesyan, the applicant's widow,
informed the Court that she wished to pursue the application.
- On
26 November 2001 the Pavlograd Court (Павлоградський
районний
суд Дніпропетровської
області)
awarded the applicant a lump sum of
UAH 9,114.31
in various payments and UAH 416.61
in monthly disability allowances against his former employers, the
State-owned companies “Dniproshakhtobud” (ДВАТ
“Дніпрошахтобуд”),
“Kryvbasshakhtoprokhodka” (трест
“Кривбасшахтопроходка”)
and “Rudoupravlinnya Kirova” (ДП
“Рудоуправління
ім. Кірова”).
The judgment came into force and the enforcement writs were
transferred to the Bailiffs' Service for enforcement.
- On
12 and 23 April 2002 the Bailiffs' Service informed the
applicant that the judgment could not be enforced due to the
considerable number of enforcement proceedings taken against the
debtors and that the sale of the debtors' assets was blocked by the
Law of 2001 “on the Introduction of a Moratorium on the Forced
Sale of Property.” Later, liquidation procedure was initiated
in respect of two of the three debtor-companies.
- In
May 2004 – April 2005 the applicant received, in instalments,
the total of UAH 5,275.02
of the lump sum award due to him. In September 2005 the
remaining part of the award was transferred to the applicant.
However, it was returned as unclaimed.
- In
November 2002 the applicant received the monthly allowances in
arrears due to him by the judgment of 26 November 2001 and since then
was receiving them regularly. The June and
July 2005 allowances were returned as unclaimed.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is briefly summarised in the judgment of
Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July
2004).
THE LAW
I. AS TO THE LOCUS
STANDI OF MRS MOVSESYAN
11. On 14 January 2006 Mrs Movsesyan,
the applicant's widow, informed the Court that she wished to pursue
the application of her late husband.
- The
respondent Government did not lodge any objections with regard to Mrs
Movsesyan's standing.
- The
Court considers that the widow of the applicant has standing to
continue the present proceedings in his stead (see Sharenok
v. Ukraine, no. 35087/02, §§ 10-12,
22 February 2005). However, reference will still be made to
the applicant throughout the ensuing text.
II. ADMISSIBILITY
- The
applicant complained about the State authorities' failure to enforce
the judgment of 26 November 2001 in due time. He invoked
Article 6 § 1 of the Convention and Article 1
of Protocol No. 1, which 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 ....”
- The
Government raised objections, contested by the applicant, regarding
exhaustion of domestic remedies similar to those which the Court has
already dismissed in other judgments regarding non-enforcement of
judgments against the State-owned companies (see e.g., Romashov
v. Ukraine, cited above, §§ 30-33). The Court
considers that the present objections must be rejected for the same
reasons.
- The
Court concludes 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 judgment of 26 November 2001 raise
issues of fact and law under the Convention, the determination of
which requires an examination on the merits. It finds no ground for
declaring these complaints inadmissible. It must therefore declare
them admissible.
III. 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
applicant disagreed.
- The
Court notes that the judgment of the Pavlograd Court of
26 November 2001 remained largely unenforced for more than
three years and nine months, until September 2005, when the
remaining funds were made available to the applicant. It also notes
that, notwithstanding the fact that the debts were paid to the
applicant in instalments, a substantial amount of the award was paid
to the applicant only after the communication of the application to
the respondent Government.
- 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, Sharko v. Ukraine, no.
72686/01, § 40-42, 19 April 2005 and Sharenok
v. Ukraine, cited above, §§ 25-29 and 34-38).
- 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 Article 1 of Protocol No. 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. 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 EUR 3,275.77, as unpaid amount of the judgment
debt, multiplied by late payment interest and adjusted to inflation,
in respect of pecuniary damage. Additionally, he claimed EUR 60,000
in non-pecuniary damage. He did not present any official documents
justifying his calculations.
- The
Government submitted that the aforementioned claims were exorbitant
and unsubstantiated.
- The
Court recalls that the unpaid amount of the judgment debt was made
available to the applicant, but not claimed (see paragraphs 8-9
above). Regard being had to the circumstances of the case and the
submissions of the parties, the Court considers that the Government
should pay Mrs Movsesyan the unsettled debt under the judgment
of 26 November 2001, including the unpaid part of the lump
sum compensation and allowances due to the applicant until
1 August 2005, which would constitute full and final
settlement of the applicant's claim for pecuniary damage.
- The
Court further takes the view that the applicant suffered some
non-pecuniary damage as a result of the violations found.
Nevertheless, the particular amount claimed is excessive. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards the sum of EUR 1,200 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 256.80 for costs and expenses
incurred before domestic authorities and before the Court and
presented copies of receipts for postal, translation, and copying
services.
- The
Government invited the Court to make an award, if any, on an
equitable basis.
- The
Court finds that the applicant presented sufficient evidence that the
aforementioned expenses had been incurred and finds them reasonable
as to quantum. Therefore, the Court awards Mrs Movsesyan the amount
claimed in full.
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 Protocol No. 1 of the Convention;
- Holds
a) that
the respondent State is to pay Mrs Movsesyan, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the debt still
owed to the applicant under the judgment of the Pavlograd Court of
26 November 2001, as well as EUR 1,200 (one thousand
two hundred euros) in respect of non-pecuniary damage and EUR 256.80
(two hundred fifty six euros and eighty cents) in respect of costs
and expenses 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 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 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
