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LEONTYUK
v. UKRAINE JUDGMENT 6
FIFTH
SECTION
CASE OF LEONTYUK v. UKRAINE
(Application
no. 3687/05)
JUDGMENT
STRASBOURG
22 July 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 Leontyuk 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,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having deliberated in private on 24
July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3687/05) 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, Mrs Tetyana Volodymyrivna
Leontyuk (“the applicant”), on 10 December 2004.
- The
applicant was represented by Mr G. Avramenko, a lawyer practising in
Chernigiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev.
- On
27 November 2006 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 1959 and lives in the town of Bila Tserkva,
Ukraine.
- The
applicant's husband worked at the State-owned Atomspetsbud company
(Державна
будівельно-промислова
компанія
«Атомспецбуд»).
On 16 March 2000 he died.
- By
two judgments of 1 February 2001 the Bilotserkivskyy District Court
of Kyiv Region awarded the applicant 8,235.38
Ukrainian hryvnyas (UAH) and UAH 3,270
from the Atomspetsbud company in salary arrears due to the
applicant's deceased husband. The applicant received UAH 1,478.84;
the remainder of the debts remains unpaid.
- By
an order of the Ministry of Energy dated 27 June 2002, the debtor
company was liquidated and a liquidation commission established. As a
result, the State Bailiffs' Service terminated the enforcement
proceedings in the applicant's case and the writs of enforcement were
forwarded to the liquidation commission. The liquidation proceedings
are still pending.
- On
6 October 2004 the Central Expert Commission on Chernobyl Related
Diseases (Центральна
міжвідомча
експертна
комісія по
встановленню
причинного
зв'язку хвороб,
інвалідності
та смерті з
дією іонізуючого
випромінювання
та інших шкідливих
чинників внаслідок
аварії на
Чорнобильській
АЕС) established that the death of the
applicant's husband in 2000 was caused by diseases obtained as a
result of his participation in the liquidation of the Chernobyl
catastrophe in 1986.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Mykhaylenky
and Others v. Ukraine (nos. 35091/02, and the following,
§§ 24-33, ECHR 2004 XII).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 6 § 1 of the Convention about
the lengthy non-enforcement of the two judgments of 1 February 2001
given in her favour. She also complained under Article 1 of Protocol
No. 1 that she could not recover the debts due to her from the
State-owned company in accordance with the judgments at issue.
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 ...”
A. Admissibility
- The parties did not submit any observations in respect
of the admissibility of these complaints.
- The Court notes that this part of the application 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.
B. Merits
- The
parties did not submit observations on the merits.
- The
Court notes that the judgments of 1 February 2001 have remained
unenforced for more than seven years and four 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 the Mykhaylenky and
Others judgment, cited above, §§ 55 and 64).
- The
Government have not put forward any fact or argument capable of
persuading the Court to reach a different conclusion in the present
case.
- There
has, accordingly, been a violation of Article 6 § 1
of the Convention in respect of the lengthy non-enforcement of the
judgments in the applicant's favour and a violation of Article 1
of Protocol No. 1 in the present application.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The applicant also complained under Article 2 of the
Convention, without providing any further specification in this
respect, that her husband had died because the State had failed to
create safe working conditions on the Chernobyl Nuclear Station.
- The
Court considers that, in the light of all the materials in its
possession and insofar as the matter complained of is within its
competence, it does 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 rejected 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 the unsettled judgment debts in respect of
pecuniary damage. She also claimed UAH 18,634.36
for loss of profit which she would have allegedly received should she
have placed her money on a deposit account in a commercial bank. The
applicant further claimed EUR 36,750 in respect of non-pecuniary
damage.
- The
Government submitted that they did not question the necessity to
enforce the judgments in the applicant's favour. However, they found
the claims in respect of loss of profit and non-pecuniary damage
exorbitant and unsubstantiated.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgments at issue. However,
the Court does not discern any causal link between the violations
found and the remainder of the pecuniary damage alleged; it therefore
rejects this claim. 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 2,600 in this respect.
B. Costs and expenses
- The
applicant also claimed EUR 135 for the costs and expenses.
- The
Government maintained that this amount was manifestly overstated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his/her costs and expenses only insofar 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 sum of EUR 40 to the applicant
covering costs and expenses incurred in the proceedings before the
Court.
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 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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention,
(i) the
outstanding debt in accordance with the judgments of 1 February
2001;
(ii) EUR
2,600 (two thousand and six hundred euros) in respect of
non-pecuniary damage and EUR 40 (forty euros) for costs and
expenses, 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
claims for just satisfaction.
Done in English, and notified in writing on 22 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
