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FIFTH
SECTION
CASE OF GLUSHKO v. UKRAINE
(Application
no. 22358/06)
JUDGMENT
STRASBOURG
15 October 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 Glushko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22358/06) 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, Mr Vladimir Grigoryevich
Glushko (“the applicant”), on 7 April 2006. The applicant
having died on 10 September 2008, his mother, Mrs Glushko
Evgeniya Fedorovna, expressed the wish to pursue the application.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev. The applicant and Mrs Glushko Evgeniya
Fedorovna were represented by the applicant's brother, Mr Glushko
Eduard Grigiryevich.
- On
5 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and died on 10 September 2008.
- On
3 April 1994 the applicant had a work-related accident.
Subsequently, he received the status of a partially disabled person.
- The
applicant's former employer, the State company “Makeyivvugillya”
(“the company”) paid the applicant a lump sum accident
benefit and awarded him a monthly allowance for his disability.
- In
2003 the applicant instituted proceedings in the Tsentralno gorodskoy
Court of Makeyevka against the company and the State Insurance Fund
for Industrial Accidents and Diseases (“the Fund”). He
sought re-calculation of the above allowances and claimed
compensation for losses sustained due to erroneous calculation.
- On
29 October 2003 the court found for the applicant and
awarded him 42,970.19
Ukrainian hryvnas (UAH), to be paid by the company, and UAH
12,485.76
to be paid by the Fund.
- On
25 February 2004 the Tsentralno-gorodskoy District Bailiffs' Service
of Makeyevka instituted enforcement proceedings.
- On
an unspecified date the Fund paid the applicant the full amount
awarded under the judgment.
- In
the period from 24 December 2004 to 26 July 2005 the company partly
paid its debt. The judgment remains unenforced.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law is
summarised in the Romashov v. Ukraine
judgment (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. LOCUS STANDI OF THE APPLICANT'S MOTHER
- The
applicant died on 10 September 2008. On 11 December 2008 the
applicant's mother, Mrs Glushko Evgeniya Fedorovna, informed the
Court that she wished to pursue the application.
- The
Government left the issue to the Court's discretion, but pointed out
that any award in the event of a finding of a violation could only be
received by the applicant's lawful heirs.
- The
Court notes that the present application concerns a property right
which is in principle transferable to the heirs, and that there is a
next of kin of the applicant who wishes to pursue the application. In
these circumstances the Court considers that the applicant's mother
has standing to continue the present proceedings in his stead (see
Sharenok v. Ukraine, no. 35087/02, §§ 10-12, 22
February 2005). However, reference will still be made to the
applicant throughout the text.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 of the company's failure to comply with
the judgment that had been given in his 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...”
A. Admissibility
- The
Court notes that the application 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
- In
their observations on the merits the Government advanced the
arguments they have frequently put forward in cases like the present
one (see, for example, the Romashov judgment, cited above,
§ 37).
- The
applicant disagreed.
- The
Court has frequently found violations of Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention in cases raising
similar issues to those in the present case (see Romashov v.
Ukraine, cited above, § 46, and Voytenko v. Ukraine,
no. 18966/02, §§ 46 and 55, 29 June 2004).
- Having
examined all the material 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
have, accordingly, been violations of Article 6 § 1
and Article 1 of Protocol No. 1 to 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
- In respect of pecuniary damage, the applicant claimed
payment of the debt still owed to him under the judgment given in his
favour. He also asked that the judgment debt be indexed to the rate
of inflation, though he did not indicate the sums in question.
Lastly, he requested that the Court award him compensation for
non-pecuniary damage. He left the determination
of the amount of the award in that respect to the Court's discretion
- The
Government stated that they had no objections to enforcing the
judgment given in the applicant's favour. They left the question of
compensation for non-pecuniary damage to the Court's discretion.
- The Court finds that the
Government should pay the applicant the outstanding debt under the
judgment given in his favour by way of compensation for pecuniary
damage. It further dismisses the claim for inflation
adjustment as unsubstantiated (see, a contrario,
Maksimikha v. Ukraine, no. 43483/02,
§ 29, 14 December 2006). The Court further takes
the view that the applicant must have sustained non-pecuniary damage
as a result of the violations found. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, it
awards the applicant EUR 2,300 under this head.
B. Costs and expenses
- The
applicant requested that the Court award him compensation for the
cost of postage. He left the determination of
the amount of the award in that respect to the Court's discretion
- The
Government left this question to the Court's discretion.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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
considers it reasonable to award the applicant the sum of EUR 10 for
the cost of postage.
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
- Holds
that Mrs Glushko Evgeniya Fedorovna has standing to continue the
present proceedings in the applicant's stead;
- 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 to the Convention;
- Holds
a) that the respondent State
is to pay the applicant's mother, Mrs Glushko Evgeniya
Fedorovna, to be held by her for all the
applicant's heirs, if other than herself, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the following
sums:
(i) the debt still owed to the
applicant under the judgment of the Tsentralno-gorodskoy District
Court of Makeyevka of 29 October 2003;
(ii) EUR 2,300 (two thousand
three hundred euros) in respect of non-pecuniary damage and EUR 10
(ten euros) for postage expenses, plus any tax that may be chargeable
to the applicant, to be converted into 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
