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FIFTH
SECTION
CASE OF
GLIVUK v. UKRAINE
(Application
no. 19949/03)
JUDGMENT
STRASBOURG
20
September 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 Glivuk 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 28 August 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19949/03) 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 Russian national, Mrs Anna Vasilyevna Glivuk
(“the applicant”), on 9 June 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
7 September 2005 the Court decided to communicate the complaints
concerning the lengthy 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.
- In
accordance with Article 36 § 1 of the Convention, the
Russian Government were invited to exercise their right to intervene
in the proceedings, but they declined to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and resides in the town of Shakhty, Rostov
region, Russia.
- At
the material time the applicant lived in Ukraine.
- In
1979, as a result of an accident, for which a State-owned mine was
deemed liable, the applicant had her arms amputated.
- On
23 September 1980 the Sverdlovskyy District Court awarded the
applicant 80 Soviet roubles in life monthly compensation from the
“Sverdlovskantratsyt” mining enterprise (Виробниче
об'єднання
«Свердловськантрацит»).
The applicant had been receiving these payments until 2001.
- In
2000 the applicant moved to Russia.
- On
11 September 2000, following the applicant's request to review the
amount of compensation due to her, the Sverdlovskyy Town Court
awarded the applicant a lump sum of 2,748.60
and 152.28
Ukrainian hryvnas in monthly payments from
the State Krasnodonsko-Sverdlovske Mine Liquidation Department
(Краснодонсько-Свердловське
управління
по ліквідації
шахт).
- In
October 2001 the court sent the writs of enforcement to the
Voroshylovskyy Bailiffs' Service. The applicant informed the Court
that her written requests about the course of the enforcement
proceedings remained unanswered.
- By
letters of 28 November and 9 December 2003, the Ministry of Fuel and
Energy, and the Donetsk State Administration, respectively, informed
the applicant that, since April 2001, the monthly payments were to be
made by the Social Security Fund. However, at the time of the
accident the applicant was not employed by the mine, and the
legislation in force did not foresee social security payments in such
cases.
- In
their submissions of 11 December 2006 the Government stated that on 5
December 2001 the payment order for the lump sum of UAH 2,748.60
had been submitted to the Department of the State Treasury in Donetsk
Region. On an unspecified date this amount was transferred to the
Bailiffs' Service banking account since the applicant's whereabouts
were allegedly unknown.
- The
applicant informed the Court that in November 2006 she had been
requested to provide her bank account details with a view to transfer
her an above amount. The parties did not inform the Court whether the
judgment of 11 September 2000 had been finally enforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
- Relying
on Article 13 of the Convention, and Article 1 of
Protocol No. 1 the applicant complained about the lengthy
non-enforcement of the judgments given in her favour. These Articles
provide, insofar as relevant, as follows:
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 ...”
- The
Court finds that the applicant's complaint about the lengthy
non-enforcement of the judgments given in her favour also requires
examination under Article 6 § 1 of the Convention which reads 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. ...”
I. ADMISSIBILITY
- The
Government maintained that the applicant had failed to institute
enforcement proceedings concerning the judgment of 11 September 2000
and, therefore, could not claim to be a victim of an alleged
violation of the Convention. In particular, they submitted that the
writ of enforcement had been received by the Bailiffs' Service only
in 2004.
- The
Court notes that, according to the documents submitted by the
parties, the writ of enforcement for the judgment of 11 September
2000 was sent to the Bailiffs' Service by the court in October 2001
(see paragraph 11). Moreover, in their
further submissions, the Government informed the Court that the
Bailiffs' Service had performed certain actions in 2001 with a view
to enforce the judgment in question (see paragraph 13).
- The
Court reiterates that it is inappropriate to require an individual
who has obtained judgment against the State at the end of legal
proceedings to then bring enforcement proceedings to obtain
satisfaction (see, for example, Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004; Karahalios v. Greece,
no. 62503/00, § 23, 11 December 2003 and Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 198, ECHR
2006-...). Therefore, the Court rejects the Government's objection in
this respect.
- The
Government further 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 they must
be rejected for the same reasons.
- The
Court concludes that the applicant's complaints about the delay in
the enforcement of the judgments in her favour are not manifestly
ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that these complaints are not
inadmissible on any other grounds. They must therefore be declared
admissible.
II. MERITS
- The
Government maintained that the Bailiffs' Service had performed all
necessary actions in order to enforce the judgment of 11 September
2000 in the applicant's favour. The Government contended that the
length of enforcement was not unreasonable and was caused by a
difficult financial situation of the debtor company.
- The
applicant disagreed.
- The
Court notes that the judgment of 23 September 1980 was being enforced
until 2001 (see paragraph 8). Following the applicant's request for a
review of the amount due, the amount of further payments was
determined by the judgment of 11 September 2000.
- The
Court further notes that the judgment of 11 September 2000 given in
the applicant's favour has not been enforced for almost seven years.
- 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, no. 67534/01, § 42-46, 27 July 2004;
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.
- The
Court does not consider it necessary in the circumstances to rule on
the same complaint under Article 13 of the Convention.
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 in respect of pecuniary damage
the amount of the judgments' debts still owed to her, and 1,000,000
Russian roubles
in respect of non-pecuniary damage.
- The
Government maintained that this amount was exorbitant and
unsubstantiated.
- Insofar
as the applicant claimed the amounts awarded to her by the judgments
at issue, the Court considers that the Government should pay the
outstanding debt in accordance with the judgment of 11 September 2000
and to enforce this judgment in respect to the payment of the life
monthly allowance awarded to the applicant. The Court further
considers that the applicant must have sustained non-pecuniary
damage, and awards her, deciding on an equitable basis, EUR 2,600 in
this respect.
B. Costs and expenses
- The
applicant did not claim any costs and expenses occurred before the
Court.
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 that it is not necessary to rule on the
applicant's 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, the debt still
owed to her in accordance with the judgment of 11 September 2000, as
well as EUR 2,600 (two thousand six 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 20 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
