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FIFTH
SECTION
CASE OF
BILETSKAYA v. UKRAINE
(Application
no. 25003/06)
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 Biletskaya 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 the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 25003/06) 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 Lyubov Mikhaylovna
Biletskaya (“the applicant”), on 3 June 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
14 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1957 and lives in Slavutych
of the Kyiv Region.
- On 16 May 2005 the Slavutych Court awarded the
applicant 6,057.34 Ukranian hryvnias
(UAH) in compensation for salary arrears and non pecuniary
damage to be paid by the State Central Enterprise of Nuclear Waste
Utilisation (Державне
підприємство
«Центральне
підприємство
по переробці
радіоактивних
відходів»).
The judgment became final on 16 June
2005.
- In
May 2006 the Ministry of Fuel and Energy of Ukraine informed the
applicant that the liquidation procedure in respect of the State
Central Enterprise of Nuclear Waste Utilisation had been instituted
and that the Enterprise lacked funds to pay the judgment debts to the
applicant.
- The
judgment remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Mykhaylenky
and Others v. Ukraine (nos. 35091/and foll., §§ 24-33,
ECHR 2004 XII).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
A. Admissibility
- The
Government submitted that the applicant’s complaint was
inadmissible as violation of Article 1 of Protocol No. 1 to the
Convention concerning non-enforcement of judgment could not be
established separately, being based on a finding of a breach of
Article 6 § 1 of the Convention.
- The
applicant disagreed.
- The Court considers that the Government’s
objection is closely linked to the merits of the applicant’s
complaints under Article 1 of Protocol No. 1. In these circumstances,
it joins this objection to the merits of the applicant’s
complaint.
- The
Court notes that the applicant’s complaint 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
ground. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that the judgment debt at issue constitutes the
applicant’s possession (see Poltorachenko v. Ukraine,
no. 77317/01, § 38, 18 January 2005) and impossibility for the
applicant to obtain execution of the judgment at issue amounts to an
interference with this possession (see, among other authorities,
Voytenko v. Ukraine, no. 18966/02, § 53, 29 June 2004).
It has already found a violation of Article 1 of Protocol No. 1
in cases similar to the present one, where the Government have not
advanced any convincing justification for that interference (see,
Dubenko v. Ukraine, cited above, § 51; see also
Lopatyuk and Others v. Ukraine, nos. 903/05 et seq., §§ 14-15
and 22, 17 January 2008).
- 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.
- In
view of the above the Court rejects the Government’s
preliminary objection as to admissibility of the application and
holds that there had been a violation of 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 the unpaid judgment debts and 3,000 euros in
respect of non-pecuniary damage.
- The
Government had no objections to the enforcement of the judgment at
issue. They contested the applicant’s claims in respect of
non pecuniary damage.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment given in the
applicant’s favour. It further takes the view that the
applicant must have sustained non pecuniary damage as a result
of the violation found. Making its assessment on an equitable basis,
as required by Article 41 of the Convention, the Court awards
the applicant EUR 1,200 under this head.
B. Costs and expenses
- The
applicant claimed EUR 56 supported by relevant evidence. The Court
considers it reasonable to award the applicant the amount claimed.
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
1. Joins the Government’s
preliminary objection to the merits and declares the
application admissible;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
23. 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
judgment debts, EUR 1,200 (one thousand two hundred euros) in
respect of non pecuniary damage and EUR 56 (fifty six 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;
(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.
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
