BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF TERESHCHENKO v. UKRAINE
(Application
no. 33959/05)
JUDGMENT
STRASBOURG
30 July
2009
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 Tereshchenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc
judge,
and Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33959/05) 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, Ms Valentyna Pavlivna
Tereshchenko (“the applicant”), on 3 September 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
11 June 2008 the President of the Fifth
Section decided to give notice of the application to the Government.
It was also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1949 and lives in the town of Zhovti Vody,
Ukraine.
- The
applicant and her husband worked for a State company, open joint
stock company Electrongaz, (“the company”). By two
separate judgments of 12 May 1999, the Zheltovodsky Court
awarded the applicant and her husband 3,465.53 and 659.45
Ukrainian hryvnas (UAH) respectively. On
10 October 2003 the applicant’s husband died. The
applicant inherited the award against the company made by the court
in his favour.
- In
a letter of 3 January 2008 the applicant reported that both judgments
had been enforced in full in May 2007.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law regarding enforcement of
court decisions is summarised in the judgment of Voytenko v.
Ukraine (no. 18966/02, §§ 20-25,
29 June 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1 TO THE
CONVENTION
- The
applicant complained that the judgments given in her favour and in
favour of her husband were not enforced in good time. She relied on
Article 1 of Protocol No. 1 to the Convention of the Convention,
which reads as follows:
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.....”
A. Admissibility
- The Government submitted that the applicant had failed
to exhaust domestic remedies as required by Article 35 § 1
of the Convention. In particular, they maintained that she had not
availed herself of the opportunity to be registered as creditor in
the insolvency proceedings pending against the debtor enterprise.
- The
applicant disagreed.
- The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (see Trykhlib v. Ukraine,
no. 58312/00, §§ 38-43, 20 September 2005,
and Otychenko and Fedishchenko v. Ukraine,
nos. 1755/05 and 25912/06, § 27, 12 March 2009).
The Court considers that this objection must be rejected in the
instant case for the same reasons.
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government contended that the State bailiffs had taken every action
necessary to enforce the judgments in the applicant’s favour
and in favour of her husband that there had been no violation of
Article 1 of Protocol No. 1. They further maintained
that these judgments had been enforced in full.
- The
applicant disagreed.
15. The Court observes
that it has already found violations of Article 1 of
Protocol No. 1 in cases similar to the present one (see
Voytenko v. Ukraine,
cited above; § 55, and Lopatyuk and Others
v. Ukraine, nos. 903/05 and foll. § 22, 17 January
2008). It finds no ground to depart
from its case-law in the present case.
- There
has, accordingly, been a violation of Article 1 of Protocol
No. 1 to the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
her initial application the applicant also invoked Article 17 of the
Convention. In her later submissions which were lodged in January
2009 the applicant also complained under Articles 6 § 1
and 13 about the non-enforcement of the judgments of 12 May 1999
given in her favour and in favour of her husband.
- The
Court has examined the remainder of the applicant’s complaints
and considers that, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
Accordingly, the Court rejects them as manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 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 UAH 11,000 (about EUR 1,039) in respect of
pecuniary damage. She further claimed EUR 20,000 in respect of
non-pecuniary damage.
- The
Government contested these claims as unsubstantiated and exorbitant.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, ruling on an equitable basis, it awards the applicant
EUR 2,600 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award for costs and expenses.
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 complaint under Article 1 of
Protocol No. 1 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to 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 2,600 (two
thousand six hundred euros), plus any tax that may be chargeable, 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;
(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;
4. Dismisses the remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer
Lorenzen
Deputy Registrar President
