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FIFTH
SECTION
CASE OF KASYANCHUK v. UKRAINE
(Application
no. 4187/05)
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 Kasyanchuk v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
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. 4187/05) 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 Lyudmyla Leonidivna
Kasyanchuk (“the applicant”), on 10 December 2004.
- The
applicant was represented by Mr G. M. Avramenko, a lawyer practising
in Chernihiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Yu. Zaytsev.
- On
15 October 2008 the President of the Fifth Section decided to
communicate the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in the village of Uzhachyn,
Zhytomyr Region.
- The
applicant worked at the State-owned Atomspetsbud company (Державна
будівельно-промислова
компанія
«Атомспецбуд»).
- On
an unspecified date the applicant instituted proceedings against the
above company in the Novograd-Volynskyy Town Court (“the Town
Court”) claiming 8,677.37 Ukrainian hryvnias (UAH) in salary
arrears.
- By
an order of the Ministry of Energy dated 27 June 2002, the company
was liquidated and a liquidation commission established.
- On
15 April 2003 the Town Court terminated the proceedings in the case
because the company was in liquidation.
- By
a letter of 15 December 2003 the liquidation commission acknowledged
the applicant’s claim of UAH 8,677.37.
The applicant was included in the register of creditors of the
company.
- On
19 December 2008 the applicant was paid the full amount of the
outstanding debt.
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 1 OF PROTOCOL NO. 1
- The
applicant complained that she could not recover debt from the
State-owned company for a long period of time. She relied on
Article 1 of Protocol No. 1, which reads, in so far as relevant,
as follows:
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. ”
A. Admissibility
- The
Government submitted that the applicant had lost victim status as the
debt was paid to her. They further insisted that the applicant should
have appealed against the Town Court’s decision of 15 April
2003 and that the application was submitted outside the six-month
period.
- The
applicant disagreed.
- In
so far as the Government object to the victim status of the
applicant, the Court notes that the fact that the debt in question
was paid does not deprive the applicant of the victim status in
relation to the period during which the debt remained unpaid (see
Romashov v. Ukraine, no. 67534/01, §§ 26-27,
27 July 2004).
- As
to the non-exhaustion plea, the Court notes that the applicant’s
appeal against the decision of 15 April 2003 would obviously be of no
assistance to the applicant. The debt in question was confirmed by
the liquidation commission, which was responsible for its payment.
- The
Court finally notes that on the date of the introduction of the
application the debt had not been paid to the applicant. Thus the
six-month rule does not apply to this continuing situation.
- Accordingly,
the Court dismisses the Government’s objections. 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
Government advanced their standard arguments for cases concerning
lengthy non-compliance with financial obligations by State-owned
companies. They insisted that there had been no violation of
Article 1 of Protocol No. 1.
- The
applicants disagreed.
- The
Court notes that on 15 December 2003 the liquidation commissions
acknowledged the debt to the applicant. On 19 December 2008 this debt
was paid. Thus, the overall delay exceeded five years.
- The
Court reiterates that it has already found violations of Article 1 of
Protocol No. 1 in cases like the present application (see
Mykhaylenky and Others, cited above, § 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 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 4,000 euros (EUR) in respect of
non-pecuniary damage.
- The Government submitted that this amount was
exorbitant and unsubstantiated.
- The
Court 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 2,100 in this
respect.
B. Costs and expenses
- The
applicant also claimed EUR 135 for the costs and expenses
incurred before the Court.
- The
Government contended that this amount was unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his/her costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are 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 to cover 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 application admissible;
- 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, EUR 2,100 (two
thousand one hundred euros) in respect of non-pecuniary damages and
EUR 40 (forty euros) in respect of costs and expenses, plus
any tax that may be chargeable, to be converted into Ukrainian
hryvnias at the rate applicable at the date of settlement;
(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 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
