BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SHAGA v. UKRAINE
(Application
no. 39846/04)
JUDGMENT
STRASBOURG
31
January 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 Shaga v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Javier
Borrego Borrego,
Renate
Jaeger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having deliberated
in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39846/04) 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, Mrs Oleksandra Fedorivna
Shaga (“the applicant”), on 26 October 2004.
- 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 1951 and lives in the city of Chernigiv,
Ukraine.
- On
21 December 2000 the Novozavodskyy District Court awarded the
applicant 5,258
Ukrainian hryvnas (UAH) from the State-owned Atomspetsbud company
(Державна
будівельно-промислова
компанія
«Атомспецбуд»)
in alimonies due to the applicant by her ex-husband
who was employed by the company. This judgment remains
unenforced.
- On
29 January 2002 the Pecherskyy District Court of Kyyv rejected the
applicant’s claim against the President of Ukraine, the Cabinet
of Ministers, the Ministry of Fuel and Energy and the Ministry of
Justice for compensation for pecuniary and non-pecuniary damage
inflicted by the non-enforcement of the judgment in her favour.
- 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 writ of enforcement
was forwarded to the liquidation commission. The liquidation
proceedings are still pending.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Mykhaylenky
and Others v. Ukraine (nos. 35091/02 and foll., §§
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
lengthy non-enforcement of the judgment of 21 December 2000 given in
her favour. She also complained under Article 1 of Protocol No. 1
that she could not recover the debt due to her from the State-owned
company in accordance with the judgment 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 the case.
- The Court notes that 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 their observations on the merits as well.
- The
Court notes that that the judgment of 21 December 2000 remains
unenforced for almost seven years.
- 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
judgment in the applicant’s favour and a violation of
Article 1 of Protocol No. 1 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 unsettled judgment debt in respect of pecuniary
damage and UAH 35,000
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 for non-pecuniary damage exorbitant and
unsubstantiated.
- The
Court notes that, as the judgment given in favour of the applicant
remains unenforced, the Government should pay the applicant the
outstanding debt. 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 2,000 in this respect.
B. Costs and expenses
- The
applicant also claimed UAH 1,000
for the costs and expenses. No document in
support of this claim has been submitted.
- The
Government submitted that the Court should make no award in this
respect.
- The
Court considers that the applicant has not provided any
substantiation of her costs and expenses claimed; however, it is
obvious that she has had postal expenses in relation to filing her
application with the Court. The Court, therefore, awards the
applicant EUR 30 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 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 in the present application;
- 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 outstanding
debt in accordance with the judgment of 21 December 2000, as well as
EUR 2,000 (two thousand euros) in respect of non-pecuniary damage and
EUR 30 (thirty euros) for the 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;
(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
claims for just satisfaction.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
