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FIFTH
SECTION
CASE OF POGREBNA v. UKRAINE
(Application
no. 25476/02)
JUDGMENT
STRASBOURG
15
February 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 Pogrebna v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 22 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 25476/02)
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
Lyubov Grygorivna Pogrebna (“the applicant”), on
17 November 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z. Bortnovska, Mrs V. Lutkovska and Mr Y.
Zaytsev.
- On
9 September 2004 the Court decided to communicate the complaints
under Articles 6 § 1 and 13 of the Convention 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and currently resides in the town of
Vasylkiv, Kyiv Region, Ukraine.
- The
applicant and her ex-husband are doctors. They have established
several NGOs among which are “Lyubava” and “Rodyna”
NGOs.
- On
15 April 1999 criminal proceedings were instituted against the
applicant's ex-husband allegedly for the misappropriation of
humanitarian aid. On the same day, in the course of these criminal
proceedings, the applicant was arrested, her apartment and garages
were searched and some of the applicant's property was seized. The
police also seized some documents of the “Lyubava” NGO.
- On
16 April 1999 a judge of the Vasylkivskyy Town Court ordered the
applicant's detention for three days under the administrative
procedure for failure to comply with the orders given to her by the
police and the refusal to let the police officers search her
apartment.
- On
19 April 1999 the applicant was arrested on suspicion of having
committed a crime. According to the applicant, she was
interrogated at night and the police officers threatened her, and she
was subjected to inhuman and degrading treatment during
interrogations and during her detention.
- On
20 April 1999, allegedly because of her mental problems and the
general deterioration of her health, the applicant was brought by the
police to a mental hospital. On 21 April 1999 the applicant was
released upon a written undertaking not to abscond but stayed in the
hospital until 30 April 1999. On 30 April 1999 the written
undertaking not to abscond was cancelled. According to the applicant,
she was informed thereof only by letter of 23 June 2006.
- On
23 May 2000 the President of the Kyiv Regional Court quashed the
decision of 16 April 1999 and closed the case for lack of the
evidence of an administrative offence.
- On
20 April 2001 the Vasylkivskyy Town Court awarded the
applicant 2,000
Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage
inflicted by the unlawful decision of the court, UAH 8.68
in compensation for the loss of income and UAH 300
in compensation for costs and expenses to be paid from the State
budget. This decision was upheld on 22 May 2001 by the Kyiv Regional
Court in the part concerning compensation for non-pecuniary damage.
The applicant's complaint about the pecuniary damage (loss of income)
was remitted for a fresh consideration. The court did not pronounce
itself on the claim for compensation for costs and expenses.
- On
8 August 2001 the Vasylkivskyy Town Court awarded the applicant
UAH 412
in compensation for the loss of income, and costs and expenses.
- On
9 October 2001 the Supreme Court of Ukraine upheld the judgments of
the Vasylkivskyy Town Court of 20 April and 8 August 2001.
- On
26 April 2002 the judgments of 20 April and 8 August 2001 were
enforced in full.
- The
applicant instituted another set of proceedings in the Vasylkivskyy
Town Court claiming compensation for the loss of income and
non-pecuniary damage inflicted by her unlawful arrest and detention,
and the unlawful actions of the police. On 11 October 2001 the court
awarded the applicant UAH 15,030
in compensation for non-pecuniary damage and UAH 950
in compensation for costs and expenses. On 19 February 2002 the
Kyiv Regional Court of Appeal (former Kyiv Regional Court)
reduced the amount of compensation for non-pecuniary damage up to UAH
10,030.
On 23 September 2003 the Supreme Court of Ukraine upheld this
judgment.
- On
11 May 2002 the judgment of 19 February 2002 was enforced in
full.
- On
31 January 2002 the Vasylkivskyy Town Court ordered the Vasylkivskyy
Town Department of the Ministry of Interior to return the property
confiscated from the applicant in April 1999 during the search of her
apartment. It also ordered the Department to pay the applicant
UAH 1,050
in compensation for costs and expenses. On 26 April 2002 the
applicant received the above amount. According to the applicant, she
has also received 6% of the seized property.
- On
18 June 2002 the Pecherskyy District Court of Kyiv refused to
consider the applicant's administrative complaint lodged against the
Regional State Treasury Department, the National Bank of Ukraine and
the Pecherskyy District Bailiffs' Service for improper enforcement of
the judgments in her favour, as it should have been heard under the
civil procedure and not in the course of the administrative
proceedings. This ruling was upheld on 16 January 2003 by the Kyiv
City Court of Appeal. The applicant lodged a cassation appeal. The
parties did not provide any further information about these
proceedings.
- On
28 October 2003 the Pecherskyy District Court of Kyiv rejected the
applicant's claim for compensation for pecuniary and non-pecuniary
damage inflicted by the lengthy non-enforcement of the judgments in
her favour. On 28 January 2004 the Kyiv City Court of Appeal upheld
this judgment. On 17 April 2006 the Supreme Court of Ukraine rejected
the applicant's appeal in cassation.
II. RELEVANT DOMESTIC LAW
20. The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- Relying
on Article 13 of the Convention, the applicant complained that the
judgments adopted in her favour remained unenforced. This Article
provides, 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.”
- 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. ...
A. Admissibility
- The
Government raised objections regarding the applicant's victim status
and exhaustion of domestic remedies similar to those which the Court
has already dismissed in the case of Romashov v. Ukraine (see
the Romashov judgment, cited above, §§ 23-33). The
Court considers that the present objections must be rejected for the
same reasons.
1. Non-enforcement of the judgments of 20 April 2001, 8
August 2001, 19 February 2002 and of the monetary part of the
judgment of 31 January 2002
- The Court notes that the period of enforcement of the
judgments of 20 April 2001, 8 August 2001 and 19 February 2002, and
of the monetary part of the judgment of 31 January 2002 in the
applicant's favour lasted less than one year. The Court further notes
that this period is not so excessive as to disclose any appearance of
a breach of the Article 6 § 1 of the Convention. Furthermore, it
is observed that the judgments' debts did not concern the applicant's
basic subsistence and there were no other special, urgent
circumstances that would lead to the conclusion that the periods of
time that lapsed from the judgment in the applicant's favour until
their enforcement were unreasonable. It follows that this complaint
is manifestly ill-founded within the meaning of Article 35 § 3,
and must be rejected pursuant to Article 35 § 4
of the Convention.
2. Non-enforcement of the non-monetary part of the
judgment of 31 January 2002
- The Court finds that the applicant's complaints under
Articles 6 § 1 and 13 of the Convention concerning the
non-enforcement of part of the judgment of 31 January 2002 raise
issues of fact and law under the Convention, the determination of
which requires an examination of the merits. It finds no ground for
declaring them inadmissible.
B. Merits
- The Government did not submit any observations on the
lengthy non-enforcement of the judgment of 31 January 2002.
- The
applicant submitted that the judgment of 31 January 2002 has not been
enforced in reasonable time.
- The Court notes that the non-monetary part of the
judgment in the applicant's favour has not been enforced for more
than four years and eleven months.
- The
Court recalls that it has already found violation of Article 6 § 1
of the Convention in cases like the present application (see, for
instance, Romashov, cited above, §§ 42-46).
- 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.
- The Court does not find it necessary in the
circumstances to examine the same complaint under Article 13 of the
Convention (see Derkach and Palek v. Ukraine, nos. 34297/02
and 39574/02, § 42, 21 December 2004).
II. OTHER COMPLAINTS
- The
applicant complained under Article 3 of the Convention that she had
been subjected to an inhuman and degrading treatment during her
arrest and in detention.
- She
further complained under Article 5 of the Convention that she had
been unlawfully arrested, detained, and later placed into mental
hospital. The applicant complained under Article 5 § 5 of the
Convention about the impossibility to receive compensation for her
unlawful detention.
- The
applicant complained under Article 8 of the Convention that her
apartment and garages had been unlawfully searched.
- The
applicant complained under Article 11 of the Convention about the
impossibility to retrieve documents of the “Lyubava” NGO
seized during the search in her apartment and that without these
documents the NGO could not function.
- The
applicant finally complained that she had not been informed that the
written undertaking not to abscond had been cancelled and this
violated her right foreseen by Article 2 of Protocol No.4.
- In
the light of all the materials in its possession, and insofar as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being 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 USD 28,327.20
in respect of pecuniary damage and USD 2,948,174.10
in respect of non-pecuniary damage.
- The Government maintained that the applicant's claims
were exorbitant and unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. However, insofar as
the non-monetary part of the judgment of 31 January 2002 in the
applicant's favour has not been enforced in full (paragraph 17
above), the Court considers that, if the Government were to enforce
the remaining part of the judgment, it would constitute full and
final settlement of her claim for pecuniary damage. The Court also
considers that the applicant must have sustained non-pecuniary
damage, and, deciding on an equitable basis, awards her EUR 1,600 in
this respect.
B. Costs and expenses
- The
applicant claimed USD 23,498.60
in costs and expenses, including USD 649.60
for the postal expenditures and legal assistance for lodging her
application with the Court.
- The Government maintained that only those expenses
which were actually and necessarily incurred should be awarded.
- The
Court reiterates that, in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, among many other
authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 62, ECHR 1999-VIII).
- The
Court considers that these requirements have not been met in the
instant case. In particular, it notes that the case is not
particularly complex and the applicant was not required to be legally
represented. However, the applicant may have incurred some costs and
expenses for her representation before the Court.
Regard
being had to the information in its possession and to the above
considerations, the Court awards the applicant EUR 100 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 complaints under Articles 6 §
1 and 13 of the Convention concerning the lengthy non-enforcement of
the non-monetary part of the judgment of 31 January 2002 admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is not necessary to rule on the
applicant's complaint under Article 13 of the Convention;
4. Holds
(a) that
the respondent State is to enforce the non-monetary part of the
judgment of 31 January 2002 and 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 1,700 (one thousand seven hundred euros) in respect of
non-pecuniary damage and costs and expenses 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 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
