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FIFTH
SECTION
CASE OF SHCHERBININ AND ZHARIKOV v. UKRAINE
(Applications
nos. 42480/04 and 43141/04)
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 Shcherbinin and Zharikov 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,
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 two applications (nos. 42480/04 and 43141/04)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Vladimir Petrovich Shcherbinin and Mr Ivan
Fyodorovich Zharikov (“the applicants”), on 19 July 2004
and 2 March 2004 respectively.
- The
applicants were represented by Mr V. Bychkovskiy from
Miusinsk. The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
- 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 applicants' favour to the Government. Under the
provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the applications at the same time as
their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1938 and 1933 respectively and live in
Krasnyy Luch, the Lugansk region. They are former employees of the
State Mining Company Novopavlivska (“the Mine,” ДП
шахта
„Новопавлівська”).
- On
6 October 1999, 16 and 28 February 2001 the
Krasnyy Luch Court (Краснолуцький
міський
суд Луганської
області)
ordered the Mine to pay UAH 3,626.42,
UAH 1,000.96
and UAH 1,868.12
respectively in salary arrears and various payments to the first
applicant.
- On
1 and 23 February 2001 the Krasnyy Luch Court ordered
the Mine to pay UAH 3,776.36
and UAH 1,491.80,
respectively, in salary arrears and various payments to the second
applicant.
- All
of the above judgments became final and the enforcement writs were
transferred to the Krasnyy Luch Bailiffs'
Service (“the Bailiffs,”
Відділ
Державної
виконавчої
служби Краснолуцького
міського управління
юстиції) for
enforcement.
- On
29 May 2002 the Lugansk Regional Commercial Court (“the
Commercial Court,” Господарський
суд Луганської
області)
initiated bankruptcy proceedings against the Mine and introduced a
moratorium on payment of its debts.
- On
14 November 2002 the Commercial Court declared the Mine
bankrupt and ordered its rehabilitation, which was to be completed by
31 December 2007.
- In
July 2004 the first applicant received the debts due to him by the
judgments of 6 October 1999 and 16 February 2001.
As regards the debt due to him by the judgment of 28 February 2001
– the first applicant received it in several instalments, the
last payment being made on 27 July 2006.
- On
27 November 2004 the second applicant received the debt due
to him by the judgment of 23 February 2001. The debt due to
him by the judgment of 1 February 2001 was paid to him in
several instalments, the final one being made on 26 July 2006.
II. RELEVANT DOMESTIC LAW
12. The relevant domestic
law is summarised in the judgment of Sokur v. Ukraine
(no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. JOINDER OF THE APPLICATIONS
- Pursuant
to Rule 42 § 1 of the Rules of Court, the Court
decides to join the applications, given their common factual and
legal background.
II. ADMISSIBILITY
- The
applicants complained about the State authorities' failure to enforce
the judgments of the Krasnyy Luch Court given in their favour in due
time. They 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 ....”
- The
Government submitted no observations on the admissibility of the
applicants' complaints.
- The
Court concludes that the applicants' 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 the Krasnyy Luch
Court 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.
III. MERITS
- In
their observations on the merits of the applicants' complaints, the
Government contended that there had been no violation of
Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1.
- The
applicants disagreed.
- The
Court notes that the judgments given in the applicants' favour were
not enforced for considerable periods of time. Notably, the periods
of debt recovery in the applicants' cases ranged from three years and
five months to five years and six 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 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.
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
first applicant claimed the global sum of UAH 28,906.78
(EUR 4,652.29) in respect of pecuniary and non-pecuniary damage.
The second applicant claimed the global sum of UAH 18,194.86
(EUR 2,850.93) in respect of pecuniary and non-pecuniary damage.
25. The Government submitted that these
claims were unsubstantiated.
- The Court does not discern any
causal link between the violations found and the pecuniary damage
alleged; it therefore rejects these claims. However, the Court
considers that the applicants must have sustained non-pecuniary
damage, and awards each of them EUR 2,100 in this respect.
B. Costs and expenses
- The
first applicant claimed costs and expenses without specifying any
amount. The second applicant did not submit any separate claim under
this head.
- The
Government submitted that the Court should give no award.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court makes no award 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
- Decides to join the applications;
2. Declares the applications 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 Protocol No. 1 of the Convention;
- Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,100
(two thousand one hundred euros) in respect of 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 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 applicants'
claims 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
