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FIFTH
SECTION
CASE OF SLUKVINA v. UKRAINE
(Application
no. 9023/03)
JUDGMENT
STRASBOURG
21
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 Slukvina 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 27 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9023/03) 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 Roza
Polikarpovna Slukvina (“the applicant”), on
6 March 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z. Bortnovska, Mrs V. Lutkovska and Mr Y.
Zaytsev.
- On
2 June 2004 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 1936
and resides in the town of Novogrodivka, Donetsk region, Ukraine.
- The applicant instituted
proceedings in the Novogrodivskyy Town Court of Donetsk Region
against the Novogrodivska Mining Company No. 1/3 (Шахта
1/3 «Новогродівська»)
- a State-owned enterprise - to recover salary arrears and
other payments due to her late husband.
- On 28 May 2001 the
Novogrodivskyy Town Court found in favour of the applicant (Рішення
Новогродівського
міського суду
Донецької
області) and
awarded her 23,741.84
Ukrainian hryvnias (“UAH”). The judgment was sent for
enforcement to the Novogrodivskyy Town Bailiffs' Service (Відділ
Державної
виконавчої
служби Новогродівського
міського управління
юстиції).
- Subsequently, the applicant
instituted proceedings in the Novogrodivskyy Town Court of the
Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for
failure to enforce the judgment in her favour. On 20 December
2001 the Town 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 28 May 2001. However, by a number of decisions of the
Commercial Court of the Donetsk Region, the Bailiffs' Service had
been prohibited from selling the property of the Mining Company, due
to the bankruptcy proceedings which had been initiated against the
company. On 14 March 2002 the Supreme
Court of Ukraine rejected the applicant's appeal in cassation.
- In August 2002, the applicant instituted another set of
proceedings in the Novogrodivskyy Town Court of
the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service
for failure to enforce the judgment in her favour. On 10 October 2002
the Town Court rejected the applicant's claim, for the same reasons
as before. On 16 December 2002 the Donetsk Regional Court of Appeal
upheld the decision of the first instance court of 10 October 2002.
On 22 October 2003 the Supreme Court of Ukraine rejected the
applicant's appeal in cassation.
- In February 2003 the Novogrodivska Mining Company was
reorganised and became a structural subdivision of the Selidovugol
Mining Company. As the latter thereby became the debtor, in February
2004 the enforcement proceedings were transferred to the Selidivskyy
Town Bailiffs' Service (Відділ
Державної
виконавчої
служби Селидівського
міського управління
юстиції).
- The judgment in the applicant's
favour was enforced by instalments, the last amount being paid on 31
August 2004.
- The applicant instituted
proceedings in the Selidivskyy Town Court of the Donetsk region
against the Selidivskyy Town Bailiffs' Service claiming compensation
for material and moral damage caused to her by the delay in the
enforcement of the judgment in her favour. On 24 November 2004 the
court found against the applicant. On 21 July 2005 the Donetsk
Regional Court of Appeal upheld this judgment. The applicant appealed
in cassation and the proceedings are still pending.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicant introduced a new complaint,
alleging a violation of Article 13 of the Convention without any
further specification.
- In
the Court's view, the new complaint is not an elaboration of the
applicant's original complaints, lodged with the Court approximately
two years earlier, on which the parties have commented. The Court
considers, therefore, that it is not appropriate now to take this
matter up separately (see Piryanik v. Ukraine, no.
75788/01, § 20, 19 April 2005).
II. ADMISSIBILITY
- 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. 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 ....”
- The
Government raised an objection regarding the applicant's victim
status similar to that which the Court has already dismissed (see
Shmalko v. Ukraine, no. 60750/00, §§ 30-34, 20
July 2004). The Court considers that the present objection 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 Novogrodivskyy Town 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.
III. MERITS
- The Government maintained that the judgment in the
applicant's favour was enforced in full. They further maintained that
the responsibility of the State in this
situation 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 and the energy sector of the Ukrainian economy in
general. The Government contended that the Bailiffs' Service had
performed all necessary actions and could not be blamed for the
delay. The regularity of the enforcement proceedings in the present
case was confirmed by the domestic courts. The Government argued that
the State could not be considered responsible for the debts of its
enterprises and that the State annually allocated substantial amounts
from its budget to cover part of disability allowances and other
compensatory payments to the workers in the mining industry.
- The
applicant disagreed.
- The Court notes that the judgment in the applicant's
favour was not enforced for more than three years and three 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, Sokur v. Ukraine,
cited above, §§ 30-37; Shmalko v. Ukraine,
cited above, §§ 55-57).
- 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.
IV. 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 EUR 2,001 in respect of pecuniary damage and EUR
6,000 in respect of 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 of the Convention;
- 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 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 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
