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FIFTH
SECTION
CASE OF ROGOZHINSKAYA v. UKRAINE
(Application
no. 2279/03)
JUDGMENT
STRASBOURG
7 December
2006
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 Rogozhinskaya v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 13 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2279/03) 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 Nina Dmitriyevna
Rogozhinskaya (“the applicant”), on 4 December 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
15 March 2005 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 1948 and lives in the town of Nizhyn, Chernigov
region, Ukraine.
5. The
applicant instituted proceedings in the Nizhynskyy Town Court against
her former employer, the State-owned “Nizhynsilmash”
enterprise (ВАТ
«Ніжинсільмаш»),
to recover salary arrears.
6. On
3 October 2000 the court awarded the applicant 501.49
Ukrainian hrivnias (“UAH”) (Рішення
Ніжинського
міського
суду).
- In
October 2000 the Nizhyn Town Bailiffs' Service (Відділ
Державної
виконавчої
служби Ніжинського
міського управління
юстиції) initiated
the enforcement proceedings. By
letter of 28 January 2002, the Bailiffs' Service informed the
applicant that it was not possible to
sell the debtor's property as, according to the Law on the
Introduction of a Moratorium on the Forced Sale of Property, on
26 December 2001 a ban on the forced sale of assets belonging to
undertakings in which the State holds at least 25% of the share
capital had been introduced. It also stated that the debtor's
property was in a tax lien.
- On
29 May 2003 the judgment was enforced.
- In
June 2001 the applicant instituted new proceedings in the same court
against the same enterprise to receive further payments and
compensation.
- On
11 July 2001 the court found for the applicant and awarded her
UAH 275. On 13 December 2001 the Chernigiv Regional Court
of Appeal quashed this judgment and awarded the applicant UAH
440.24
(Ухвала
Апеляційного
суду Чернігівської
області).
On 7 June 2002 the Supreme Court of Ukraine rejected the applicant's
appeal in cassation.
- In
July 2004 the judgment of 13 December 2001 was enforced.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
- The
applicant complained about the lengthy non-enforcement of the
judgments in her favour. She invoked Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1. 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 ....”
I. ADMISSIBILITY
- The
Government raised objections regarding the applicant's victim status
and the exhaustion of domestic remedies similar to those which the
Court has already dismissed in the case of Romashov v. Ukraine
(cited above, §§ 23-33). The Court
considers that the present objections must be rejected for the same
reasons.
- The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention about the delay in the enforcement of the judgments
of the Nizhynskyy Town Court and the Chernigiv Regional Court of
Appeal raises issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It
finds no ground for declaring this complaint inadmissible. For the
same reasons, the applicant's complaint under Article 1 of
Protocol No. 1 cannot be declared inadmissible.
II. MERITS
- In
their observations the Government commented only on the enforcement
proceedings of the judgment of 3 October 2000. In this respect the
Government maintained that the responsibility
of the State was limited to the organisation and proper conduct of
enforcement proceedings and that the length of the enforcement
proceedings had been caused by the critical financial situation of
the debtor company. The Government contended that the Bailiffs'
Service performed all necessary actions and cannot be blamed for the
delay. The Government argued that the State could not be considered
responsible for the debts of its enterprises. The Government finally
maintained that the length of the enforcement in the present case
cannot be considered as unreasonable.
- The
applicant disagreed.
- The
Court notes that the judgments in the applicant's favour were not
enforced for more than two years and seven months and two years and
six months, respectively.
- 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, among others,
Romashov v. Ukraine, cited above, §§ 42 46;
Shmalko v. Ukraine, no. 60750/00, §§ 55-57, 20 July
2004).
- Having
examined all the materials 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.
- There
has, accordingly, been a violation of Article 6 § 1
of the Convention and of Article 1 of Protocol No. 1.
III. 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 UAH 16,665
in respect of pecuniary and non-pecuniary damage.
- The
Government maintained that the applicant had not substantiated her
claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non pecuniary damage, and, deciding on an equitable basis,
awards her EUR 800 in this respect.
B. Costs and expenses
- The
applicant did not submit any claim under this head within the set
time-limit; the Court therefore makes no award 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;
- 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 800 (eight
hundred euros) in respect of non-pecuniary damage, 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 claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
