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]
[Help]
FIFTH
SECTION
CASE OF CHERNYSHEVA v. UKRAINE
(Application
no. 22591/04)
JUDGMENT
STRASBOURG
10 August
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 Chernysheva 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 J. Borrego Borrego,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 10 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22591/04) 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 Natalya
Nikolayevna Chernysheva (“the applicant”), on 7
June 2004.
- 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.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1953
and resides in the town of Novogrodovka, Donetsk region, Ukraine.
- The applicant instituted
proceedings in the Novogrodovskiy Town Court of the Donetsk Region
against the Novogrodovskaya Mining Company No. 1/3 - a State-owned
enterprise - to recover salary arrears and other payments due to her
late husband.
- On 7 October 2003 the
Novogrodovskiy Town Court found in favour of the applicant (Решение
Новогродовского
городского
суда Донецкой
области) and awarded
her UAH 10,317.71.
On 17 November 2003 the Novogrodovskiy Town Bailiffs’ Service
(Отдел Государственной
исполнительной
службы Новогродовского
городского
управления
юстиции) refused to
initiate the enforcement proceedings because the debtor was located
in a different district.
- The applicant instituted
proceedings in the Novogrodovskiy Town Court of the Donetsk Region
against the Novogrodovskiy Town Bailiffs’ Service for failure
to institute enforcement proceedings. On 13 February 2004 the
Town Court rejected the applicant’s claim, finding that no
fault had been committed by the Bailiffs’ Service. On 22
April 2004 the Court of Appeal of the Donetsk Region upheld this
decision. The applicant appealed in cassation to the Supreme
Court of Ukraine. The proceedings are still pending.
- On 25 February 2004 the
Selidovskiy Town Bailiffs’ Service (Отдел
Государственной
исполнительной
службы Селидовского
городского
управления
юстиции) initiated the
enforcement proceedings.
- In August-October 2004 the
applicant has received UAH 8,281.50,
the rest of the debt awarded remains unpaid.
- The applicant instituted
proceedings in the Selidovskiy Town Court against the Selidovskiy
Town Bailiffs’ Service claiming compensation for material and
moral damage caused by a lengthy non-enforcement of the judgment in
her favour. On 12 October 2004 the court found against the applicant.
On 17 January 2005 the Court of Appeal of the Donetsk Region upheld
this judgment. On 22 March 2005 the Selidovskiy Town Court returned
the applicant’s appeal in cassation as submitted too late. The
applicant appealed against this decision. Proceedings are still
pending.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 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 new complaints,
alleging violation of Articles 2 and 13 of the Convention on
account of the non-enforcement of judgment in her favour.
- In
the Court’s view, the new complaints are not an elaboration of
the applicant’s original complaints, lodged with the Court
approximately one year earlier, on which the parties have commented.
The Court considers, therefore, that it is not appropriate now to
take these matters up separately (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ADMISSIBILITY
- The
applicant complained about the length of the non-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 ....”
- 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 (no.
67534/01, §§ 28-32, 27 July 2004). 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
Novogrodovskiy Town Court is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible. For the same
reasons, the applicant’s complaint under Article 1 of
Protocol No. 1 cannot be declared inadmissible.
III. MERITS
- The Government maintained that the
responsibility of the State in this situation was limited to the
organisation and proper conduct of enforcement proceedings and
that the length of the enforcement proceedings had been caused by the
critical financial situation of the debtor company and the energy
sector of the Ukrainian economy in general. The Government contended
that the Bailiffs’ Service performed all necessary actions and
cannot be blamed for the delay. The regularity of the enforcement
proceedings in the present case was confirmed by the domestic courts.
The Government finally argued that the State could not be considered
responsible for the debts of its enterprises.
- The
applicant disagreed.
- The Court notes that the judgment in the applicant’s
favour has not been fully enforced for more than two years and eight
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, Sokur v. Ukraine,
cited above, §§ 30-37; Shmalko v. Ukraine, no.
60750/00, §§ 55-57, 20 July 2004).
- Having examined all the material 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.
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 EUR 9,903 in respect of pecuniary and non-pecuniary
damage.
- The
Government maintained that the applicant has not substantiated her
claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- However,
in so far as the judgment in the applicant’s favour has
not been enforced in full (paragraph 10 above), the Court considers
that, if the Government were to pay the remaining judgment debt owed
to the applicant, it 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, and awards her EUR 600 in this respect.
B. Costs and expenses
- The
applicant claimed EUR 100 in costs and expenses.
- The
Court considers that the applicant has not provided any
substantiation of her costs and expenses claimed; however, it is
obvious that she has had postal expenses in relation to filing her
application with the Court. The Court, therefore, awards the
applicant EUR 30 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 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, the judgment
debt still owed to her, as well as EUR 630 (six hundred thirty euros)
in respect of non-pecuniary damage and postal expenses;
(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, plus any tax that may be chargeable;
(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 10 August 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
