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FIFTH
SECTION
CASE OF KONONENKO v. UKRAINE
(Application
no. 33851/03)
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 Kononenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, 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. 33851/03) 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 Nelya Vasylivna
Kononenko (“the applicant”), on 9 October 2003.
- The
applicant was represented before the Court by Messrs Dmytro Ogiyenko
and Valeriy Kononenko, lawyers practicing in the city of Kharkiv,
Ukraine. 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 1947 and lives in the town of Gorlivka, Donetsk
region, Ukraine.
- On
an unspecified date, the applicant instituted proceedings in the
Tsentralno-miskyy District Court against her former employer, the
Artemvugillya State Mining Company (Управління
по гасінню
териконів в/о
„Артемвугілля”),
to recover salary arrears. On 17 November 1998 the court awarded the
applicant 2,864.16
Ukrainian hryvnias (“UAH”) (Рішення
Центрально-міського
районного суду
м.Горлівки).
- On
1 February 1999 the Tsentralno-miskyy
District Bailiffs' Service (Відділ
Державної
виконавчої
служби Управління
юстиції Центрально-міського
району м.Горлівки)
initiated the enforcement proceedings. On
28 March 2000 the applicant was paid UAH
665.28. From 20 June 2000 until 8 February 2001 the enforcement
proceedings were stayed because of the bankruptcy proceedings
instituted against the debtor. On 14 May 2003 the applicant was paid
further UAH 333.03.
- On
an unspecified date, the applicant instituted proceedings in the
Tsentralno-miskyy District Court of the
town of Gorlivka against the Tsentralno-miskyy Bailiffs'
Service for failure to enforce the court judgment in her favour. On 2
December 2003 the court rejected the applicant's claim, finding no
fault had been committed by the Bailiffs' Service. The court
stated that the Bailiffs' Service had acted properly in enforcing the
judgment of 17 November 1998. The court noted that the debtor's
property was in a tax lien and that, 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 held at least 25% of the share
capital had been introduced.
- On
7 October 2005 the Government submitted that the applicant had
further received UAH 261.88 and 677.04 in 2004. The applicant did not
contest these submissions. According to the
applicant, the rest of the sum due to her remains unpaid.
II. RELEVANT DOMESTIC LAW
9. 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
judgment in her favour. She invoked Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1., which
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 exhaustion of domestic
remedies similar to those which the Court has already dismissed in
the case of Romashov v. Ukraine (cited above, §§
28-32). 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 judgment
of the Tsentralno-miskyy District Court 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
- The
Government maintained that the right of the applicant to have a
judgment in her favour enforced has been never questioned. The
Government further maintained that the limitations of this right in
the present case were aimed at the protection of the public interests
and did not breach the very essence of the right in question. The
Government argued that the State could not be considered responsible
for the debts of its enterprises and, consequently, the
responsibility of the State was limited to the organisation and
proper conduct of enforcement proceedings only. The Government
contended that the Bailiffs' Service had performed all necessary
actions and could not be blamed for the delay. The Government finally
maintained that the length of the enforcement in the present case was
caused by a difficult financial situation of the debtor enterprise.
- The
applicant disagreed.
- The
Court notes that the judgment in the applicant's favour has not been
enforced for more than seven years and eleven months.
- 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 1,327.61
in respect of pecuniary damage and EUR 4,000 in respect of
non-pecuniary damage.
- The
Government maintained that the applicant's non-pecuniary claims were
exorbitant and non-substantiated.
- The
Court considers that the Government should pay the applicant the
outstanding debt
in settlement of her pecuniary damage. As to the remainder of the
applicant's just satisfaction claims for pecuniary damage, the Court
does not discern any causal link between the violation found and the
pecuniary damage alleged; it therefore rejects this claim. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, awards the applicant EUR 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed UAH 3,100
in costs and expenses for legal assistance of Mr Ogiyenko.
- The
Government contested this amount and stressed that it was not
reasonable.
- The
Court reiterates that, in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, among many other
authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 62, ECHR 1999-VIII).
- The
Court considers that the applicant may have incurred some costs and
expenses for her representation before the Court. Regard being had to
the information in its possession and to the above considerations,
the Court awards the applicant EUR 300 for costs and expenses.
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, the judgment
debt still owed to her as well as EUR 2,300 (two thousand three
hundred euros) in respect of non-pecuniary damage, costs and
expenses, plus any tax that may be chargeable;
(b) that
the above amount shall be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) 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
