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FIFTH
SECTION
CASE OF SIKORSKA v. UKRAINE
(Application
no. 34339/03)
JUDGMENT
STRASBOURG
6
September 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 Sikorska 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
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34339/03) 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 Olga Stepanivna
Sikorska (“the applicant”), on 29 August 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeriya Lutkovska.
- On
8 April 2005 the Court decided to communicate the complaint
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 1952 and lives in the city of Zhytomyr.
1. Non-enforcement of the judgment in the applicant's
favour
- From
1988 to 2001 the applicant worked as a teacher at the Zhytomyr
Orphanage (Житомирський
обласний будинок
дитини; hereafter “the
Orphanage”).
- On
27 September 2001 the Bogunsky District Court of Zhytomir
(hereinafter “the Bogunsky Court”) ordered the Orphanage
to pay the applicant a total of UAH 3,483.60 (an equivalent of EUR
508.25) in compensation for salary and social benefits arrears (see,
in this respect, Kechko v. Ukraine, no. 63134/00,
§§ 9-11, 8 November 2005).
- In
a letter of 10 October 2003, the Zhytomyr Regional Department of
Justice informed the applicant that the judgment in her favour could
not be enforced due to the debtor's lack of funds. It also pointed
out that the 2003 State Budget did not preview the expenditure for
teachers' social benefits and that the Zhytomyr Regional State
Administration applied to the Ministry of Finance for a loan for the
payment of the debt to the applicant.
- The
judgment of 27 September 2001 remains unenforced.
2. Reinstatement proceedings
- In
November 2001 the applicant instituted proceedings against the
Orphanage seeking her reinstatement and compensation for the loss of
salary. On 31 May 2002 the Bogunsky Court rejected this claim as
unsubstantiated. On 12 September 2002 the Zhytomyr Regional Court of
Appeal upheld this judgment. On 12 February 2003 the Supreme Court
rejected the applicant's cassation appeal.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine (no. 67534/01, §§ 16-19) and
Kechko v. Ukraine (cited above, §§ 16-18).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Relying
on Article 6 § 1 of the Convention, the applicant
complained about the non-enforcement of the judgment given in her
favour. This provision reads, 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. ...”
A. Admissibility
- The
Government raised objections, contested by the applicant, similar to
those already dismissed in a number of the Court's judgments
regarding non-enforcement against the State institutions (see
Voytenko v. Ukraine, no. 18966/02, § 27-31,
29 June 2004 and Romashov v. Ukraine, cited above, §§ 28-32).
The Court considers that these objections must be rejected for the
same reasons.
- The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention 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. The Court
must therefore declare it admissible.
B. Merits
- The
Government acknowledged the need to enforce the judgment given in
favour of the applicant. They stated that the judgment of
27 September 2001 had remained unenforced due to a lack of
budget funding, which, in turn, was caused by the State's critical
financial situation.
- The
applicant disagreed.
- The
Court notes that in the present case the enforcement of the judgment
in the applicant's favour was delayed for five years and nine months
due to the State's failure to foresee the relevant expenditure in the
State Budget.
- The
Court accepts that appropriations for the payment of State debts may
cause some delay in the enforcement of judgments from the
Government's budget. Nevertheless, the Court considers that, by
failing to make such appropriations for several consecutive years,
the respondent State fell short of its obligations under Article 6 §
1 of the Convention (see Voytenko v. Ukraine, cited
above, § 42, 29 June 2004). Moreover the State's lack of funds
cannot justify the non-enforcement of a court judgment against it.
- The
foregoing considerations lead the Court to conclude that the
enforcement of the judgment given in favour of the applicant was not
carried out within a reasonable time.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 1 and 6 § 1 of the
Convention about the unfairness and outcome of the reinstatement
proceedings.
- However,
in the light of all the materials in its possession, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 of the Convention.
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 EUR 5,000 in respect of pecuniary and non-pecuniary
damage.
- The
Government found the applicant's claims excessive and unjustified.
- In
so far as the debt under the judgment of 27 September 2001 in
the applicant's favour has not been paid (paragraph 6 above), the
Court notes that the State's outstanding obligation to enforce this
judgment is not in dispute. Accordingly, the Court considers that, if
the Government were to pay the remaining debt owed to the applicant,
it would constitute full and final settlement of the case.
-
As regards the remainder of the applicant's claims for pecuniary and
non-pecuniary damage, the Court, making its assessment on equitable
basis, as required by Article 41 of the Convention, considers it
reasonable to award the applicant EUR 2,600 in respect of her
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 300 for the costs and expenses
incurred before the domestic courts and before the Court.
- The
Government contested the claim.
- The
Court notes that the applicant failed to substantiate her claim and
provide necessary documents to support it. Regard being had to the
information in its possession, the Court 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 complaint concerning the
non-enforcement of the judgment in the applicant's favour admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 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, EUR 2600 (two
thousand and six hundred euros) in respect of non-pecuniary damage to
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;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Peer Lorenzen
Deputy Registrar President
