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FIFTH
SECTION
CASE OF SHULGA v. UKRAINE
(Application
no. 16652/04)
JUDGMENT
STRASBOURG
2 December
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Shulga v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 16652/04) 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, Ms Anna Ivanovna Shulga (“the applicant”),
on 7 April 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
2 March 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol no.
14, the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in the village of Volodarske,
Donetsk Region, Ukraine.
A. First set of proceedings
- On 24 February 1998 the Novogrod Court ordered the
State mine, “Rossiya”, to pay the applicant’s
husband 2,000 Ukrainian hryvnias (UAH, about USD 1,000) in
compensation for non-pecuniary damage caused to him as a result of a
work-related accident. On 12 March 1998 the court sent the
enforcement writ in respect of that judgment to the State Bailiffs’
Service. Later, the applicant and her husband appealed against that
judgment under the extraordinary procedure. However, their efforts
were unsuccessful.
- The applicant’s husband died on 14 January 2003.
According to the applicant’s submissions, her daughter received
the award under the judgment on an unspecified date in 2003 and then
transferred the money to the applicant. In 2006 the applicant lodged
several requests with the Bailiffs’ Service and the Novogorod
Court requesting information about the enforcement proceedings.
However, her efforts were unsuccessful. In their observations, the
Government provided no information about the date of the enforcement
of the judgment in question either.
B. Second set of proceedings
- In November 2003 the applicant instituted proceedings
against the Novogrod Department of the State Pension Fund in the
Novogrod Court, seeking recalculation of her pension. On 29 March
2004 the court found against the applicant. On 10 June 2004 the
Donetsk Regional Court of Appeal upheld this judgment. In July 2004
the applicant lodged an appeal in cassation. On 19 October 2006 the
Higher Administrative Court upheld the decisions of the lower courts.
C. Third set of proceedings
- On
10 November 2003 the applicant instituted proceedings against the
State Insurance Fund for Work-Related Accidents and Diseases in the
Novogrod Court, alleging that her husband had died as a result of a
work-related disease. She claimed compensation for the damage caused
to her as a result of her husband’s death. On 27 October 2004
the court found against the applicant. On 24 January 2005 the Donetsk
Regional Court of Appeal upheld this judgment. The applicant lodged
an appeal in cassation on 23 February 2005. On 4 May 2007 the Supreme
Court sent the applicant’s appeal in cassation to the Kyiv City
Court of Appeal for consideration. On 30 October 2007 the latter,
acting in its cassation jurisdiction, upheld the decisions of the
lower courts.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law concerning the enforcement of
the judgments is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-19, 27 July
2004).
- On
22 February 2007 the Law on Amendments to the Judicial System of
Ukraine was enacted. The amendments provided, inter alia, that
cassation appeals in civil cases pending before the Supreme Court on
1 January 2007, were to be transferred for consideration to the
panel of judges of the respective courts of appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1
- The
applicant complained about the non-enforcement of the judgment given
in her husband’s favour. She relied on Article 1 of
Protocol No. 1 to the Convention, which provides 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.
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
Government submitted that the applicant’s complaint under
Article 1 of Protocol No. 1 should be declared inadmissible since no
complaint about non-enforcement had been raised under Article 6 §
1 of the Convention. They also maintained that neither the applicant
nor her husband had submitted the enforcement writ to the State
Bailiffs’ Service.
- The
applicant disagreed.
- Referring to its case-law, the Court notes that the
impossibility for an applicant to obtain the execution of a judgment
in his or her favour constitutes an interference with the right to
the peaceful enjoyment of possessions, as set out in the first
sentence of the first paragraph of Article 1 of Protocol No. 1 (see,
among other authorities, Burdov v. Russia, no. 59498/00,
§ 40, ECHR 2002-III, and Jasiÿnienÿ v. Lithuania,
no. 41510/98, § 45, 6 March 2003). As regards the
Government’s objection that the applicant had failed to
resubmit the enforcement writ, the Court notes that in the instant
case the applicant’s husband had obtained a final and
enforceable judgment against the State mine. The Court further
reiterates that it is inappropriate to require an individual who has
obtained a judgment against the State at the end of legal proceedings
to then bring enforcement proceedings to obtain satisfaction (see
Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007
and the case-law referred to therein). Therefore, the Court dismisses
the Government’s objections.
- 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 grounds. It must therefore be declared admissible.
B. Merits
- The
Government made no observations on the merits of the complaint.
- The
applicant maintained her complaint.
- The
Court observes that, according to the applicant’s statement,
the judgment of 24 February 1998 was enforced only in 2003.
- The
Court has frequently found violations of Article 1 of Protocol No. 1
to the Convention in cases raising similar issues to the ones in the
present case (see Lopatyuk and Others v. Ukraine, nos. 903/05
and foll., § 22, 17 January 2008).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case.
- There
has accordingly been a violation of Article 1 of
Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained that the length of the third set of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Court notes that this 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 grounds. It must
therefore be declared admissible.
B. Merits
- The
Government contested the applicant’s complaint. In particular,
they maintained that the lengthy consideration of the applicant’s
cassation appeal was caused as a result of the Supreme Court being
overloaded. They further submitted that the Law of 22 February 2007
had been enacted in order to resolve that problem.
- The
applicant disagreed.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
period to be taken into consideration in the present case began on 10
November 2003 and ended on 30 October
2007. The proceedings thus lasted almost four
years at three levels of jurisdiction.
- The Court notes that the major delay in the
proceedings at issue was caused as a result of the applicant’s
appeal in cassation not being considered in good time. The Court
reiterates that it is the role of the domestic courts to manage their
proceedings so that they are expeditious and effective. However, in
the Court’s opinion the national courts did not act with due
diligence.
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case (see, mutatis mutandis, Doğru
Avşar v. Turkey, no. 14310/05, §
8, 12 January 2010 and Frydlender, § 46, cited
above).
- Having
examined all the material submitted to it, 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.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS OF THE
CONVENTION
- The applicant complained under
Article 6 § 1 of the Convention of the unfairness and length of
the proceedings. In particular, she alleged that the judges sitting
in her and her husband’s cases lacked impartiality and had not
been independent. She further complained under Article 6 § 1 of
the lengthy non-execution of the judgment given in her husband’s
favour. Relying on Article 1 of Protocol No. 1, she complained about
the outcome of the proceedings in her and her husband’s cases.
Lastly, she invoked Articles 13 and 14 of the Convention referring to
the facts of the case.
- The
Court has examined the remainder of the applicant’s complaints
and considers that, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, they did do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. Accordingly, the Court
rejects them as manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicant claimed 7,196 euros (EUR) in compensation for pecuniary
damage and EUR 4,000 in respect of non-pecuniary damage sustained by
her.
-
The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- The
Court further takes the view that the applicant has suffered
non-pecuniary damage. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards her
EUR 2,000 in that respect.
B. Costs and expenses
- The applicant claimed EUR 80 for costs and expenses.
However, she produced postal receipts for
mailing correspondence to the Court amounting to UAH 223 (about EUR
23).
- The
Government left the matter to the Court’s discretion.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 23 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 complaint under Article 6 § 1
of the Convention concerning the excessive length of the third set of
proceedings and the complaint under Article 1 of Protocol No. 1 of
the lengthy non-enforcement of the judgment admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the third
set of proceedings;
- 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 applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two thousand
euros) in respect of non-pecuniary damage, as well as EUR 23
(twenty-three euros) in respect of costs and expenses, plus any tax
that may be chargeable to the applicant, to be converted into the
national currency of the respondent State at the rate applicable on
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 2 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
