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FIFTH
SECTION
CASE OF Tamara
Vasilyevna Len and
Grigoriy
Kuzmich Len v. UKRAINE
(Application
no. 852/05)
JUDGMENT
STRASBOURG
10
December 2009
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 Tamara Vasilyevna Len and Grigoriy Kuzmich Len
v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar.
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 852/05) against Ukraine lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Ukrainian nationals, Ms Tamara Vasilyevna Len and Mr Grigoriy
Kuzmich Len (“the applicants”), on 9 December 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
16 December 2008 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaints under Article 6 § 1 and Article 13 of
the Convention and Article 1 of Protocol No. 1 concerning the
lengthy non-enforcement of decisions given in the applicants’
favour. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3). The case was given priority under Rule 41 of the Rules of the
Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1945 and 1937 respectively and live in
Slovyansk, Donetsk region, Ukraine.
- At
the material time the applicants worked at the Soda State Plant (ВАТ
«Содовий завод»).
- On 31 October 1997 and 14 May 2003 the
Slovyansk Town Court awarded Mrs Len 1,709.25 and 5,513.92 Ukrainian
hryvnias (UAH)
in salary arrears and other payments, to be paid by the
above-mentioned company.
- On 3 November 1997 and 22 February 2001 the
Slovyansk Town Court, and on 22 September 2003 the Labour
Disputes Commission, awarded Mr Len the amounts of UAH 2,211.18
(about USD 1,176.47), UAH 9,157.04 (about EUR 1,855.94) and
UAH 2,356.92 (about EUR 399.22) in salary arrears, to
be paid by the above-mentioned company.
- These
decisions became final and the State Bailiffs’ Service
instituted proceedings to enforce them.
- On
3 January 2001 the Donetsk Arbitration Court (after June 2001 –
the Donetsk Commercial Court) instituted insolvency proceedings
against the debtor company. On 4 September 2003 the court, having
declared the debtor insolvent, ordered its liquidation, which is
still pending.
- The
decisions given in the applicants’ favour have still not been
enforced.
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. LENGTHY NON-ENFORCEMENT OF THE DECISIONS IN THE
APPLICANTS’ FAVOUR
- The
applicants complained that by failing to enforce the decisions given
in their favour the respondent State had violated Article 6 § 1
of the Convention and Article 1 of Protocol No. 1, which read,
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 ....”
They
also complained that they had no effective remedy for their
complaints, in breach of Article 13 of the Convention, which reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The Government submitted that
the applicants had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. In particular,
they maintained that the applicants had not availed themselves of the
opportunity to be registered as creditors in the insolvency and
liquidation proceedings against the debtor company, and had failed to
apply to any domestic court to challenge the allegedly inadequate
enforcement by the Bailiffs’ Service of the decisions in their
favour.
- The
applicants disagreed.
- The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (see Sokur
v. Ukraine (dec.),
no. 29439/02, 16 December 2003; Sychev
v. Ukraine, no. 4773/02,
§§ 42 46, 11 October 2005; and Trykhlib
v. Ukraine, no. 58312/00,
§§ 38-43, 20 September 2005). The Court
considers that the objections in the instant case must be rejected
for the same reasons.
- The
Court notes that the complaints 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
- The
Government contended that there had been no
violation of Article 6 § 1 or Article 13 of the Convention, or
of Article 1 of Protocol No. 1.
- The
applicants disagreed.
- The
Court notes that the decisions in the applicants’ favour have
remained unenforced for at least six years
- The
Court reiterates that it has already found violations of
Article 6 § 1 and Article 13 of the Convention
and Article 1 of Protocol No. 1 in similar cases
(see, among other authorities, Sokur v. Ukraine, no.
29439/02, §§ 30-37, 26 April 2005; Shmalko
v. Ukraine, no. 60750/00, §§ 55-57, 20 July
2004; and Voytenko v. Ukraine, no. 18966/02, §§ 43,
48 and 55, 29 June 2004).
- Having
examined all the material in its possession, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
- There
has, accordingly, been a violation of Article 6 § 1
and Article 13 of the Convention and a violation of Article 1
of Protocol No. 1 in respect of the lengthy non-enforcement of
the decisions in the applicants’ 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
applicants claimed, in respect of pecuniary damage, the amounts
awarded in the decisions given in their favour. They also claimed
compensation for inflation losses and loss of profits (Ms Len claimed
USD 3,335.72 and EUR 1,299.38; Mr Len claimed
USD 4,733.48 and EUR 3,490.51). In support of their claim
for inflation losses, the applicants presented calculations based on
the average consumer prices inflation index. Additionally, they
claimed USD 43,200 and USD 33,600, respectively, in accrued
salary arrears allegedly owed to them under domestic law provisions
because of their employer’s failure to pay them their salary in
due time. Lastly, the applicants claimed the same amounts in respect
of non-pecuniary damage.
- The
Government submitted that they did not question the necessity to
enforce the decisions in the applicants’ favour. However, they
contested the rest of the claims as excessive and unsubstantiated.
- In
so far as the applicants claimed the amount awarded to them by the
decisions concerned, the Court considers that it is undisputed that
the State still has an outstanding obligation to enforce these
decisions (see paragraphs 6 and 7 above).
- As
to the claim for inflation losses, the Court notes that the
Government merely disagreed with the method of calculation; they did
not deny that the applicants had suffered inflation losses, nor did
they provide an alternative calculation of the losses involved. The
Court further notes that the applicants, in calculating their claims
for inflation adjustment, applied the official rates, which are
designed for Ukrainian hryvnias, to the awarded sums after conversion
into euros and US dollars rather than to the principal sums in
Ukrainian hryvnias. The Court cannot, therefore, accept these
calculations. Taking into account the amounts awarded to the
applicants, the periods within which the respondent State failed to
enforce the decisions in the applicants’ favour, and the
above-mentioned average consumer prices inflation index for the
relevant period, the Court calculates the inflation losses at EUR 900
and EUR 1,800, which the Court awards respectively to the
applicants. It dismisses the remainder of the claim in respect of
pecuniary damage as ill-founded.
- The
Court also awards the applicants, on an equitable basis, EUR 2,600
each in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed an unspecified amount for costs and expenses
incurred before the Court. In support they provided postal vouchers
to a total amount of UAH 230.45 (about EUR 20.55).
- The
Government contested this claim as unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 sum of EUR 20.55 under this
head.
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 complaints under Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
to the Convention in respect of the lengthy non-enforcement of the
decisions in the applicants’ favour admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the
outstanding debts under the decisions given in the applicants’
favour;
(b) that
the respondent State is to pay the
applicants, within three months from the
date on which the judgment becomes final according to Article 44 § 2
of the Convention, the following amounts, to be converted into the
national currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 900 (nine
hundred euros) to Ms Len and EUR 1,800 (one thousand eight
hundred euros) to Mr Len in respect of pecuniary damage;
(ii) EUR 2,600 (two thousand six hundred euros) each,
plus any tax that may be chargeable, in
respect of non-pecuniary damage; and
(iii) EUR 20.55 (twenty euros fifty-five cents), plus
any tax that may be chargeable, in respect of costs and
expenses;
(c) 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
