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FIFTH
SECTION
CASE OF
STANKOVSKAYA v. UKRAINE
(Application
no. 20984/04)
JUDGMENT
STRASBOURG
11
December 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 Stankovskaya v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 20984/04) 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, Ms Lidiya Valentinovna
Stankovskaya (“the applicant”), on 21 May 2004.
-
The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev.
- The
applicant alleged the non-enforcement of the judgments given in her
favour.
- On 11 October 2007 the Court decided to give
notice of 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 1945 and lives in the town of
Novaya Kakhovka, the Kherson Region, Ukraine.
- On
5 November 2003 the Nova Kakhovka Court ordered the joint stock
company “Pivdenelektronmash” (“the company”),
in which the State holds 75 % of the shares, to pay the applicant
37,237.36
Ukrainian hryvnas (UAH) in salary arrears owed to her husband who
died in October 2002.
- There
were bankruptcy proceedings pending against the company at that time.
- On
2 December 2003 the Nova Kakhovka Bailiffs’ Office (“the
Bailiffs”) instituted enforcement proceedings. The writ of
execution was joined to other enforcement proceedings pending against
the company.
- Following
the ruling of the Commercial Court of the Kherson Region of 27
February 2004, the enforcement proceedings in respect of the judgment
of 5 November 2003 were suspended.
- On
1 November 2004 the Nova Kakhovka Court rejected the
applicant’s complaint against the alleged inactivity of the
Bailiffs. This decision was upheld on 10 March 2005 by the Kherson
Regional Court of Appeal.
- On
1 July 2005 the enforcement proceedings were resumed.
- On
7 May 2006 the company paid the applicant UAH 8,938.
- By
its judgment of 2 June 2006 the Nova Kakhovka Court ordered
that the company pay the applicant UAH 7,812
in compensation for failure to pay in time the award under the
judgment of 5 November 2003.
- On
13 June 2006 the Bailiffs instituted the enforcement proceedings in
respect of this judgment.
- According
to the applicant, the Bailiffs terminated the enforcement proceedings
concerning the judgment of 5 November 2003 on the ground of
false information provided by the company about the settlement of the
debt. The applicant requested the Nova Kakhovka Court to provide her
with a new writ of execution, which she submitted to the Bailiffs on
18 July 2006.
- On
20 July 2006 the Bailiffs instituted new enforcement proceedings in
respect of the judgment of 5 November 2003.
- The
judgments of 5 November 2003 and 2 June 2006
remain unenforced due to the company’s difficult financial
situation.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Sokur
v. Ukraine (no. 29439/02, §§ 17-22, 26 April 2005)
and Voytenko v. Ukraine (no. 18966/02, §§ 20-25,
29 June 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6
§ 1 OF THE CONVENTION and Article 1 of Protocol No. 1.
- The
applicant complained about the State authorities’ failure to
enforce the judgments of 5 November 2003 and 2 June 2006.
She invoked Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1, which provide 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 did not comment on the admissibility of these complaints.
- The
Court considers that the applicant’s complaints raise issues of
fact and law under the Convention and finds no ground for declaring
them inadmissible. The Court must therefore declare them admissible.
B. Merits
- In their observations on the merits of the applicant’s
complaints about the length of the non-enforcement of the judgments
of 5 November 2003 and 2 June 2006, the
Government put forward arguments similar to those in the cases of
Romashov v. Ukraine and Voytenko v. Ukraine,
contending that there had been no violation of either Article 6 § 1
of the Convention or Article 1 of Protocol No. 1
(see Romashov v. Ukraine, no. 67534/01, § 37,
27 July 2004; and Voytenko v. Ukraine, no. 18966/02,
29 June 2004, § 37)
- They
further maintained that, although the State owned 75 % of the shares
in the company, it was a separate legal entity and the State could
not be held responsible for its debts under domestic law.
- The
applicant disagreed.
- The Court recalls that it has already held that the
State was liable for the debts of a State-owned company, despite the
fact that the company was a separate legal entity, and, therefore,
the State was responsible for the ultimate failure to pay to an
applicant the amounts awarded to him in the judgments against such
company (see, for instance, Mykhaylenky and Others v. Ukraine,
nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02,
35953/02, 36800/02, 38296/02 and 42814/02, §§ 43-46,
ECHR 2004-XII; and Solovyev v. Ukraine, no. 4878/04,
§ 20, 14 December 2006).
- The
Court observes that the Government have not demonstrated that the
company enjoyed sufficient institutional and operational independence
from the State to absolve the latter from responsibility under the
Convention for its acts and omissions.
- Therefore, the Court considers that the State is
liable for the debts of the kind of the company involved in the
present case (see, for instance, Garkusha v. Ukraine,
no. 4629/03, § 25, 13 December 2005; Martynov
v. Ukraine, no. 36202/03, § 23, 14 December
2006; and Solovyev v. Ukraine, cited above, § 20).
- The Court notes that the judgments of 5 November 2003
and 2 June 2006 remained unenforced for around four years
and eight months, and two years and one month, respectively.
- 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 raising issues similar to the present application (see, for
instance, Garkusha, cited above, §§ 24-25, and
Mykhaylenky and Others, cited above, §§ 55, and
Voytenko, cited above, §§ 39-43).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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.
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 UAH 40,757.1
Ukrainian hryvnas (UAH) in respect of pecuniary damage. This amount
included the unsettled judgment debt, to which the applicant added
statutory default interest, which, according to the applicant,
accrued on the outstanding debt due to her. Additionally, the
applicant claimed UAH 100,000
in respect of non-pecuniary damage.
- The
Government contested these claims as unsubstantiated.
- The
Court finds that the Government should pay the applicant the
outstanding debt under the judgments of 5 November 2003 and 2 June
2006, by way of compensation for pecuniary damage. Otherwise, it does
not discern any causal link between the violation found and the
pecuniary damage alleged; it therefore rejects the remainder of the
applicant’s claim. On the other hand, ruling on an equitable
basis, the Court finds it reasonable to award the applicant EUR 1,800
in respect of non-pecuniary damage
B. Costs and expenses
- The
applicant also claimed UAH 708.03
for costs and expenses.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of the costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicant the sum of EUR 100
for costs and expenses.
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 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, the debt still
owed to the applicant under the judgments of the Nova Kakhovka Court
of 5 November 2003 and 2 June 2006, as well as
EUR 1,800 (one thousand eight hundred euros) in respect of
non-pecuniary damage, and EUR 100 (one hundred euros) for costs
and expenses, to be converted into the national currency 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 11 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
