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FIFTH
SECTION
CASE OF LAPINSKAYA v. UKRAINE
(Application
no. 10722/03)
JUDGMENT
STRASBOURG
18
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 Lapinskaya 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 11 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10722/03) 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, Mrs Lidiya
Pavlovna Lapinskaya (“the applicant”), on
17 February 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z. Bortnovska, Mrs V. Lutkovska and Mr Y.
Zaytsev.
- On
2 June 2004 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1954
and resides in the town of Novogrodivka, Donetsk region, Ukraine.
- The applicant instituted
proceedings in the Novogrodivskyy Town Court of Donetsk Region
against the “Novogrodivskaya” Mining Company 1/3 (Шахта
1/3 «Новогродівська»)
- a State-owned enterprise - to recover salary arrears and
other payments due to her late husband.
- On 1 March 2002 the
Novogrodivskyy Town Court found in favour of the applicant (Рішення
Новогродівського
міського суду
Донецької
області) and
awarded her UAH 2,290.80.
The decision was sent for enforcement to the Novogrodivskyy Town
Bailiffs' Service (Відділ
Державної
виконавчої
служби Новогродівського
міського управління
юстиції).
However, the decision was not enforced, allegedly due to the
failure of the Bailiffs' Office to act, in not selling the property
of the Mining Company.
- In June 2002 the applicant
instituted proceedings in the Novogrodivskyy Town Court of the
Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for
failure to enforce the court decision in her favour. On 26 June 2002
the Town Court rejected the applicant's claim, finding no fault had
been committed by the Bailiffs' Service. The court stated that
the Bailiffs' Service had acted properly in enforcing the decision of
1 March 2002. However, by a number of decisions of the Commercial
Court of the Donetsk Region, the Bailiffs' Service had been
prohibited from selling the property of the Mining Company, due to
the bankruptcy proceedings which had been initiated against the
company. Also on 26 December 2001, the ban on the forced sale of
assets belonging to undertakings in which the State holds at least
25% of the share capital was entrenched in the Law on the
Introduction of a Moratorium on the Forced Sale of Property. On 2
September 2002 the Donetsk Regional Court of Appeal upheld the
decision of the first instance court. On 12 November 2002 the
Novogrodivskyy Town Court of the Donetsk Region rejected the
applicant's appeal in cassation against the decision of 26 June 2002
as submitted too late. On 24 December 2002 the Donetsk Regional Court
of Appeal upheld this ruling.
- The Government submitted that in October 2004 the
debtor requested the Novogrodivskyy Town Court to review the judgment
of 1 March 2002 in light of new circumstances. No further
information was provided by the parties. In particular, the applicant
stated that she was completely unaware of these proceedings.
- According to the applicant, by November 2004 she
received UAH 2,014.80; the rest of the debt due to her remains
unpaid.
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 a new complaint about
a violation of Article 14 of the Convention alleging that she
was discriminated because the judgment in her favour was not
enforced.
- In
the Court's view, the new complaint is not an elaboration of the
applicant's original complaints on which the parties have commented.
The Court considers, therefore, that it is not appropriate now to
take this matter up separately (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ADMISSIBILITY
A. Complaint under Article 2 § 1 of the Convention
- The
applicant complained that the existing situation infringed her right
to life under Article 2 § 1 of the Convention, given her
low standard of living. The Court reiterates that, according to its
case-law, neither Article 2 nor any other provision of the
Convention can be interpreted as conferring on an individual a right
to enjoy any given standard of living (Wasilewski v. Poland
(dec.), no. 32734/96, 20 April 1999). Moreover, the applicant has not
shown that she suffers such destitution as to put her life at risk
(see Sokur v. Ukraine (dec.), no. 29439/02, 26 November
2002). It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1
- The
applicant complained about the lengthy 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 did not submit any observations as for the admissibility
of the applicant's complaints.
- 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 Novogrodivskyy 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.
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 had performed all necessary actions and
could not be blamed for the delay. The regularity of the enforcement
proceedings in the present case was confirmed by the domestic courts.
The Government argued that the State could not be considered
responsible for the debts of its enterprises and that the State
annually allocated substantial amounts from its budget to cover part
of disability allowances and other compensatory payments to the
workers in the mining industry.
- The
applicant disagreed.
- The Court notes that the judgment in the applicant's
favour has not been enforced for more than four 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 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.
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 385 in respect of pecuniary damage and EUR
6,000 in respect of non-pecuniary damage.
- The
Government maintained that the applicant's claims were exorbitant and
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. However, insofar as the judgment
in the applicant's favour has not been enforced in full (paragraph 9
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 also considers that the applicant must have sustained
non-pecuniary damage, and, deciding on an equitable basis, awards her
EUR 1,400 in this respect.
B. Costs and expenses
- The
applicant did not submit any claim under this head within the set
time-limit; the Court therefore 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 complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 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
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 1,400 (one thousand four
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 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
