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FIFTH
SECTION
CASE OF SAMOYLENKO AND POLONSKA v. UKRAINE
(Application
no. 6566/05)
JUDGMENT
STRASBOURG
18
December 2008
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 Samoylenko and
Polonska v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6566/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Ms Mariya Samoylenko
and Ms Svitlana Polonska (“the applicants”), on 8
December 2004.
- The
applicants were represented by Mr G. Avramenko, a lawyer practising
in Chernigiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev.
- On
16 October 2006 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
applicants are mother and daughter. They were born in 1945 and 1972
respectively, and live in Kyiv, Ukraine.
1. Background information
- At
the material time the companies “Spetsenergobud” (дочірнє
підприємство
«Спеценергобуд»)
(a subsidiary of “Kyivenergobud” (ВАТ
«Київенергобуд»))
and “Atomspetsbud” (Державна
будівельно-промислова
компанія
«Атомспецбуд»)
were owned by the State. By 29 May 1996 “Kyivenergobud”
had been privatised and the State no longer held any shares in it.
Atomspetsbud is still owned by the State.
- Spetsenergobud
and Atomspetsbut were engaged in work on eliminating the consequences
of the Chernobyl catastrophe.
2. Proceedings against Atomspetsbud
- On
8 December 1998 the Vatutinsky District Court of Kyiv awarded Mr S.
– the applicants' husband and father, respectively –
salary arrears in the amount of 5,635 Ukrainian hryvnias (UAH)
to be paid by his former employer, Atomspetsbud.
- When
that judgment became final, the State Bailiffs' Service instituted
proceedings to enforce it.
- On
19 March 2003 Mr S. died. According to the applicants, they are
the only heirs of Mr S.
- In
the course of the enforcement proceedings the sum of UAH 290.16
was paid to the applicants. The remainder of the debt under the
judgment of 8 December 1998 has still not been paid.
- By
an order of the Ministry of Energy dated 27 June 2002, Atomspetsbud
was liquidated and a liquidation commission established. As a result,
the State Bailiffs' Service terminated the existing enforcement
proceedings and all the writs of enforcement were forwarded to the
liquidation commission as creditors' claims.
- The
liquidation proceedings are still pending.
3. Proceedings against Spetsenergobud
- Both
applicants worked for Spetsenergobud. In 1998 they resigned.
- On
17 December 1998 by two separate judgments the Vatutinsky District
Court of Kyiv awarded the first and the second applicants salary
arrears owed to them in the amounts of UAH 4,555.37
and UAH 1,137.88,
respectively, by their former employer.
- When
those judgments became final, the State Bailiffs' Service instituted
proceedings to enforce them. On 12 March 2004 those proceedings were
terminated as it could not be established that the debtor company had
any assets. No information as to whether the applicants challenged
the decisions of 12 March 2004 and what other measures were taken by
them after that date (for instance, measures aimed to have the
enforcement proceedings reinstituted, or to join the liquidation
proceedings as creditors, and so on) is available.
- The
applicants state that the judgments in question have still not been
enforced due to the lack of funds of the debtor company. They never
claimed damages from the State Bailiffs' Service.
- According
to an excerpt from the official companies' register, in April 2007
the debtor company was under liquidation. However, it is not clear
when the liquidation proceedings were instituted and whether they are
still pending.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Mykhaylenky
and Others v. Ukraine (nos. 35091/02 et seq., §§
24-33, ECHR 2004-XII).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about the lengthy non-enforcement of the
judgments of 8 and 17 December 1998 given in their favour. The above
provisions provide, in so far 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 ...”
A. Admissibility
- The
parties did not comment on the admissibility of the present
application.
1. As regards the judgment of 8 December 1998 against
Atomspetsbud
- The
Court notes that in the present case the applicants were not parties
to the proceedings before the Vatutinsky District Court of Kyiv, and
Mr S. died almost two years before the present application was lodged
with the Court. As to Article 6 of the Convention, the Court notes
that the applicants were not involved in the substantive proceedings
at all, and were only involved in the enforcement proceedings because
they had inherited the judgment debt from their husband and father.
In such circumstances, it is not open to them to claim to be victims
of a violation of Article 6 of the Convention as regards the
enforcement proceedings (see Lopatyuk and Others v. Ukraine,
nos. 903/05 et seq., §§ 13-14, 17 January 2008).
It follows that the complaints about the length of non-enforcement
under Article 6 must be rejected as being incompatible ratione
personae with the provisions of the Convention, pursuant to
Article 35 §§ 3 and 4.
- However,
the position as to Article 1 of Protocol No. 1 is different, as
applicants were undoubtedly the owners of the respective court
awards, having inherited them in accordance with the ordinary rules
on administration of estates. They may therefore claim to be victims
of a violation of Article 1 of Protocol No. 1. The Court finds that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further finds
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
2. As regards the judgments of 17 December 1998 against
Spetsenergobud
- According to the applicants, the Government were
responsible for the non-payment of the judgment debt. They pointed
out that Spetsenergobud had carried out work at Chernobyl within the
evacuation zone, that it had been fully controlled and financed by
the State and that the latter had failed to pay for the company's
services. In support of this the applicants provided a copy of a
letter of 21 February 2001, stamped by Kyivenergobud, in which the
latter reported on the State debts to it on that date and about the
measures taken to recover those debts.
- The
Government contended that the Spetsenergobud was a private company,
and that they were not responsible for its debts. They accepted that
Spetsenergobud had been granted a permit to work within the Chernobyl
zone. However, they averred that the activity of the company was of
an intermediary nature and it had never performed its services within
the zone at issue itself. Therefore, they stated, the company had
never been funded from the State Budget.
25. The
Court notes that Spetsenergobud was a wholly owned subsidiary
of Kyivenergobud, and that Kyiverergobud had been privatised at least
two years before the applicants' husband and father initiated the
civil proceedings against it. It recalls
that in enforcement proceedings against private persons the
responsibility of the State is limited to the organisation and proper
conduct of those proceedings (see Shestakov
v. Russia (dec.), no. 48757/99,
18 June 2002). Where complaint is made of the
organisation and conduct of enforcement proceedings, Ukrainian
legislation provides for the possibility to challenge before the
courts the lawfulness of actions and omissions of the State Bailiffs'
Service in enforcement proceedings and to claim damages from that
Service for delays in payment of the amount awarded (see, for
instance, Dzizin v. Ukraine (dec.), no. 1086/02,
24 June 2003; Kukta v. Ukraine
(dec.), no. 19443/03, 22 November 2005). The applicants,
however, did not attempt to bring proceedings against the Bailiffs,
and there is no indication that Bailiffs' Service otherwise behaved
in a way which could give rise to the responsibility of the State.
- In
connection with the applicants' contention that the State was
responsible for the non-payment of the company's debts to the
applicants because the State itself had failed to pay off its debts
to Spetsenergobud, the Court notes
that the mere fact that a State has debts to a private company does
not necessarily entail State responsibility for the debts of the
company. In any event, the applicants have not submitted any evidence
to support their claim.
- Accordingly,
no link between the State's actions and/or
inactivity and the debtor company's inability to pay its debts to the
applicants has been established in the instant case. The Court
therefore cannot hold the respondent State responsible for the
non-enforcement of the judgment of 17 December 1998 against
Spetsenergobud.
- It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, and that
it must be declared inadmissible pursuant to Article 35 §§
1 and 4.
B. Merits
- The parties did not submit any observations in respect
of the merits of the application.
- The
Court notes that the judgment of 8 December 1998 given
in the applicants' favour has remained unenforced for nine years and
eleven months.
- The
Court recalls that it has already found a violation of Article 1
of Protocol No. 1 in cases like the present application (see the
Mykhaylenky and Others judgment, cited above, § 64, and
the Lopatyuk and Others judgment, cited above, § 22).
- There
has, accordingly, been a violation of Article 1 of Protocol
No. 1 in the present application.
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
applicants claimed the outstanding debts owed to them under the
judgments of 8 and 17 December 1998 in the amounts of UAH 7,372.87
and UAH 3,955.38,
respectively. They also claimed UAH 34,970.32
and UAH 18,760.80,
respectively, for losses incurred as a result of the lengthy
non-enforcement of those judgments. Finally, they claimed EUR 4,080
each in respect of non-pecuniary damage.
- The
Government submitted that they did not question the need to enforce
the judgment of 8 December 1998. However, they found the claims in
respect of losses and non-pecuniary damage exorbitant and
unsubstantiated.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgment of 8 December 1998.
However, the Court does not discern any causal link between the
violation found and the remainder of the pecuniary damage alleged; it
therefore rejects this claim. The Court further takes the view that
the applicants must have sustained non-pecuniary damage as a result
of the violation found. Making its assessment on an equitable basis,
as required by Article 41 of the Convention, the Court awards
the applicants EUR 1,000 each in this connection.
B. Costs and expenses
- The
applicants also claimed EUR 135 each for costs and expenses.
- The
Government maintained that this amount was manifestly excessive.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his/her costs and expenses only insofar 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
considers it reasonable to award the applicants the total sum of EUR
20 each to cover the costs and expenses incurred in the proceedings
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 complaints under Article 1 of
Protocol No.1 about the lengthy non-enforcement of the judgment
of 8 December 1998 admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention,
(i) the
outstanding debt under the judgment of 8 December 1998;
(ii) EUR
1,000 (one thousand euros) each in respect of non-pecuniary damage
and EUR 20 (twenty euros) each for costs and expenses, plus
any tax that may be chargeable to the applicants, to be converted
into the national currency of the respondent State
at the rate applicable at the date of settlement;
(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' claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
