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FIFTH
SECTION
CASE OF BALANDINA v. UKRAINE
(Application
no. 16092/05)
JUDGMENT
STRASBOURG
6 December
2007
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 Balandina 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 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16092/05) 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 Kateryna
Fedorivna Balandina (“the applicant”), on 20 April 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
13 December 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 1945 and lives in Kharkiv.
- On
5 May 2000 the Dzerzhynskiy District Court of Kharkiv
(Дзержинський
районний суд
м. Харкова)
awarded the applicant 4,489.02 hryvnyas (UAH)
against her former employer, the Frunzenskiy District Municipal
Renovation Company (Державне
комунальне
ремонтно-будівельне
підприємство
з ремонту житлового
фонду Фрунзенського
району м. Харкова)
in salary arrears and other payments.
- This
judgment was not appealed against, became final, and the enforcement
proceedings were instituted to collect the judgment debt.
- On
16 June 2000 the Kharkiv City Council (Харківська
міська рада)
ordered liquidation of the debtor-company and on
22 September 2000 the enforcement writ was transferred to
the liquidation commission.
- On
various occasions the applicant complained to the State authorities
about the failure of the debtor-company to pay her the judgment debt
and was informed that the collection of the debt was not possible on
account of the debtor-company's lack of funds. The judgment remains
unenforced to the present date.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the judgment of 27 July
2004 in the case of Romashov
v. Ukraine
(no. 67534/01, §§
16-19).
THE LAW
I. ALLEGED VIOLATIONS OF
ARTICLES 6 § 1, 13 AND ARTICLE 1 OF
PROTOCOL No. 1
- The
applicant complained about the State authorities' failure to enforce
the judgment of the Dzerzhynskiy District Court of Kharkiv given in
her favour. She invoked Articles 6 § 1 and 13 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 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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 ....”
A. Admissibility
- The
Government raised objections, contested by the applicant, regarding
exhaustion of domestic remedies similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement of
judgments against the public companies (see e.g. among many others,
Sychev v. Ukraine, no. 4773/02, §§ 42-46,
11 October 2005 and Romashov v. Ukraine, cited
above, no. 67534/01, §§ 28-32). The Court
considers that these objections must be rejected for the same
reasons.
- The
Court concludes that the applicant's complaints raise issues of fact
and law under the Convention, the determination of which requires an
examination on the merits. The Court finds no ground for declaring
them inadmissible. The Court must therefore declare them admissible.
B. Merits
- In
their observations on the merits of the applicant's case, the
Government contended that there had been no violation of her
Convention rights.
- The
applicant disagreed.
- The
Court notes that the delay in the enforcement of the judgment given
in the applicant's favour has exceeded seven and a half years.
- The
Court has frequently found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in
cases raising similar issues, where a debtor was a public enterprise
(see e.g., Kucherenko v. Ukraine, no. 27347/02,
§§ 26-27, 15 December 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 Article 1 of Protocol No. 1.
- The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1.
II. 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 unsettled judgment debt and 10,000 euros
(EUR) in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court finds that the Government should pay the applicant the
unsettled judgment debt by way of compensation for pecuniary damage.
It further finds that the applicant must have suffered non-pecuniary
damage on account of the violations found. Ruling on an equitable
basis, the Court awards the applicant EUR 2,000 under this head.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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 that there is no need to examine the
complaint under Article 13 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,
(i) the
unsettled debt still owed to her;
(ii) the
sum of EUR 2,000 (two thousand 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 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 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
