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FIFTH
SECTION
CASE OF MIRVODA v. UKRAINE
(Application
no. 42478/04)
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 Mirvoda v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
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. 42478/04) 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 Lyubov Nikolayevna
Mirvoda (“the applicant”), on 12 November 2004.
- The
applicant was represented by Mr V. Bychkovskiy from Miusinsk. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
8 November 2005 the Court decided to communicate the
complaints under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 concerning the non-enforcement of the
judgments in the applicant's favour 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 1958 and lives in Krasnyy Luch, the Lungansk
region.
- On
23 October 2000 the Krasnyy Luch Court (Краснолуцький
міський
суд Луганської
області)
gave two judgments in favour of the applicant against the State Open
Joint Stock Mining Company Krasnolutska (ДВАТ
Шахта „Краснолуцька”
ДП ДХК „Донбасантрацит”).
By these judgments the court awarded the applicant UAH 932.04
in salary arrears and 8,850 kilos of coal, respectively. The
judgments became final and the enforcement writs were transferred to
the Krasnyy Luch
Bailiffs' Service
(Відділ Державної
виконавчої
служби Краснолуцького
міського управління
юстиції) for
enforcement.
6. On
28 October 2004 the judgment awarding the applicant salary
arrears was enforced in full. The judgment awarding the applicant
coal has been partly enforced. To present day the applicant has
received 2,950 kilos of coal. In accordance to the Government, the
enforcement is impeded by the debtor's economic hardships.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgments of the Krasnyy Luch Court of 23 October 2000
in due time. She invoked Articles 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 submitted no observations on the admissibility of the
applicant's complaints.
- The Court finds that the applicant's complaints under
Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 about the delay in the enforcement of the
judgments of 23 October 2000 raise issues of fact and law
under the Convention, the determination of which requires an
examination on the merits. It finds no ground for declaring these
complaints inadmissible. The Court must therefore declare them
admissible.
II. MERITS
- In
their observations on the merits of the applicant's claims, the
Government contended that there had been no violation of
Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1.
- The
applicant disagreed.
- The
Court notes that the delay in the enforcement of the judgment
awarding the applicant salary arrears was four years and the delay in
the enforcement of the judgment awarding her coal has exceeded six
years and one month.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in a number of similar cases (see, for instance, Sokur v. Ukraine,
cited above, §§ 36-37 and Sharenok v. Ukraine,
no. 35087/02, §§ 37-38, 22 February 2005).
- 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.
- 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 the coal due to her by the judgment of
23 October 2000 and an additional sum of UAH 3,678.54
(EUR 590) by way of compensation for pecuniary damage.
Additionally, she claimed UAH 6,321.46 (EUR 1,010) in
compensation for non-pecuniary damage.
- The Government submitted that the obligation to
provide the applicant coal was not in dispute. They further
maintained that the remainder applicant's claim for pecuniary damage
was unsubstantiated. As regards the applicant's claim for
non-pecuniary damage, the Government preferred to leave it to the
Court to determine the award.
- The
Court considers that the Government should provide the applicant the
coal still owed to her, which would constitute full and final
settlement of her claim for pecuniary damage. The Court further
considers that the applicant must have sustained non-pecuniary damage
as a result of the violations found. Having regard to the
circumstances of the case and the submissions of the parties, the
Court awards the applicant EUR 1,010 in this respect.
B. Costs and expenses
- The applicant did not submit any separate claim under
this head; 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 to the Convention;
- Holds
(a) that
the respondent State is to enforce the remaining part of the judgment
of 23 October 2000 in favour of the applicant as well as to pay her,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the sum of EUR 1,010 (one thousand and ten euros) in
compensation for non-pecuniary damage 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 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
