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FIFTH
SECTION
CASE OF
STADNYUK v. UKRAINE
(Application
no. 30922/05)
JUDGMENT
STRASBOURG
27
November 2008
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 Stadnyuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30922/05) 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, Ms Olena Yakivna Stadnyuk
(“the applicant”), on 9 August 2005.
- The
applicant was represented by Mr M. Stadnyuk, a lawyer practising
in Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- On
11 October 2007 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 1931 and lives in
Andrushivka, Zhytomyr region, Ukraine.
- By
its judgment of 8 December 2000, the Andrushivka District Court
awarded the applicant 700 Ukrainian hryvnyas
(UAH) in compensation for pecuniary and non-pecuniary damage
caused to her by Mr Y. It appears that this judgment became
final and the enforcement proceedings were initiated. No further
information about enforcement of this judgment is available.
- In
February 2002 the applicant lodged a claim with the Bogunsky District
Court of Zhytomyr against the Bogunsky District Bailiffs' Service of
Zhytomyr (відділ
державної
виконавчої
служби Богунського
районного
управління
юстиції м. Житомира),
alleging the latter's inactivity in respect of the enforcement of the
judgment of 8 December 2000 and claiming compensation for
pecuniary and non-pecuniary damage she had sustained as a result.
- On
17 April 2003 the court found in part for the applicant and
ordered the defendant to pay her a total of UAH 450.39.
The applicant did not appeal against this judgment.
- On
21 November 2003 the Bogunsky District Bailiffs' Service of Zhytomyr
instituted enforcement proceedings. Subsequently, the latter
transferred the enforcement writ to the Zhytomyr Regional Bailiffs'
Service (відділ
примусового
виконання
рішень державної
виконавчої
служби Житомирської
області) for
enforcement.
- In the course of these enforcement proceedings the
Zhytomyr Regional Bailiffs' Service requested the Bogunsky District
Court of Zhytomyr to replace the Bogunsky District Bailiffs' Service
of Zhytomyr with the local department of the State Treasury of
Ukraine, as the debtor under the judgment of 17 April 2003. On
28 October 2004 the court rejected this request. The applicant did
not attend this hearing.
- On
21 May 2004 the State Treasury of Ukraine replied, upon the
applicant's request, that the 2004 State Budget of Ukraine did not
provide funds for payment of compensation for damage caused by
officials of the State Bailiffs' Service.
- Between
July 2004 and April 2006 the Zhytomyr Regional Bailiffs' Service
several times terminated and resumed the enforcement proceedings in
respect of the judgment of 17 April 2003. By the decision of
18 April 2006, the Zhytomyr Regional Bailiffs' Service
terminated the enforcement proceedings of the judgment of 17 April
2003 on the ground that the debtor had been liquidated. Apparently
the applicant did not appeal against this decision.
- The
judgment of 17 April 2003 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- Referring
to Article 6 § 1 of the Convention, the applicant submitted that
the length of the court proceedings against the bailiffs' service was
excessive. She also complained under this provision and Article 1 of
Protocol No. 1 about the lengthy non-enforcement the judgment of
17 April 2003. The above provisions provide, in so far 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 ...”
A. Admissibility
- The
Government contended that the applicant had not exhausted domestic
remedies as she had not challenged the decision of the Zhytomyr
Regional Bailiffs' Service of 18 April 2006. They also
maintained that the applicant had failed to show due diligence in the
proceedings before the Bogunsky District Court of Zhytomyr aimed to
replace the Bogunsky District Bailiffs' Service of Zhytomyr with the
local department of the State Treasury of Ukraine (see paragraph 9
above). They asserted in this regard that the applicant was no longer
interested in the enforcement of the judgment in question.
- The
applicant disagreed.
- The
Court notes that in the instant case the applicant has obtained a
judgment against the State which became final and enforceable. The
Court reiterates that it is inappropriate to require an individual
who has obtained judgment against the State at the end of legal
proceedings to then bring enforcement proceedings to obtain
satisfaction (see Lizanets v.
Ukraine, no. 6725/03, § 43, 31 May 2007 and
the case-law referred therein).
Nor should the applicant have been
required to take any actions - for instance, those aimed at replacing
one debtor State entity with another - in the course of the already
instituted enforcement proceedings (see, mutatis mutandis,
Vasylyev v. Ukraine, no. 10232/02, §§ 24-31,
21 June 2007). Therefore, it is not for the applicant to retune
the enforcement proceedings, if they have already been instituted, to
the changing structure of the State apparatus. Furthermore the
applicant is not called on to reinstitute the terminated enforcement
proceedings nor to challenge the decision to terminate them. Neither
of these actions relieves the State of its obligation to enforce a
final judgment against it.
- The Court concludes that the applicant's complaints
under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 are not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It further notes that they
are not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
- In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in the applicant's
respect. They further maintained that the State authorities took all
necessary measures to enforce the judgment in question.
- The
applicant disagreed.
- The
Court reiterates that the court proceedings and the enforcement
proceedings are stages one and two in the total course of proceedings
(see, Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 197). Therefore, the enforcement proceedings should not
be dissociated from the action and the proceedings are to be examined
in their entirety (see Estima Jorge v. Portugal, judgment
of 21 April 1998, Reports of Judgments and Decisions 1998 II,
§ 35, and Sika v. Slovakia, no. 2132/02, §§ 24-27,
13 June 2006).
- The
Court notes that the consideration of the applicant's case by the
national court lasted from February 2002 to 17 April 2003 when the
Bogunsky District Court of Zhytomyr found in the applicant's favour.
The length of proceedings in the judicial phase is therefore one year
and two months and there is no discernible period of inactivity which
can be attributed to the domestic court.
- However,
the judgment of 17 April 2003 remains unenforced for five years
and six months.
- The
Court reiterates 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 other authorities, Voytenko v. Ukraine, cited
above, §§ 43 and 55 and, as the recent one, Lysenko
v. Ukraine, no. 18219/02, § 26, 7 June 2007).
The Court finds no ground to depart from its case-law 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 in
respect of the lengthy non-enforcement of the judgment in the
applicant's favour in the present application.
II. 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 the outstanding debt in accordance with the
judgment of 17 April 2003 in respect of pecuniary damage. She
also claimed EUR 3,000 in respect of non-pecuniary damage.
- The
Government submitted that they did not question the necessity to
enforce the judgment in the applicant's favour. However, they found
the claims in respect of non-pecuniary damage exorbitant and
unsubstantiated.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment at issue. The Court
further takes the view that the applicant must have sustained
non-pecuniary damage as a result of the violations found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, the Court awards the applicant EUR 450 in respect of
non-pecuniary damage.
B. Costs and expenses
- In
the present case the applicant failed to submit any claims; the Court
therefore 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 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,
(i) the
outstanding debt in accordance with the judgment of 17 April 2003;
(ii) EUR
450 (four hundred and fifty 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 to the applicant;
(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 27 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait
Maruste
Deputy Registrar President
