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FIFTH
SECTION
CASE OF GIRYA AND OTHERS v. UKRAINE
(Application
no. 17787/02)
JUDGMENT
STRASBOURG
26 April
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 Girya and Others 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 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17787/02) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by 12 Ukrainian nationals, Ms Aleksandra
Nikolayevna Girya, Ms Anna Filipovna Seroshtan, Ms Yuliya
Trofimovna Butenko, Ms Svetlana Aleksandrovna Tur, Mr Nikolay
Grigoryevich Kovalenko, Ms Raisa Yefimovna Kovalenko, Mr Vitaliy
Vasilyevich Stasyuk, Ms Tatyana Ivanovna Stasyuk, Ms Nina
Vasilyevna Plavshuk, Ms Svetlana Grigoryevna Denisenko, Ms
Nadezhda Ivanovna Glushchenko and Ms Lyubov Ivanovna Shevchenko
(“the applicants”), on 21 March 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 April 2005 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
THE CIRCUMSTANCES OF THE CASE
- Ms
Aleksandra Nikolayevna Girya was born in 1954. Ms Anna Filipovna
Seroshtan was born in 1946. Ms Yuliya Trofimovna Butenko was born in
1941. Ms Svetlana Aleksandrovna Tur was born in 1960. Mr Nikolay
Grigoryevich Kovalenko was born in 1945. Ms Raisa Yefimovna
Kovalenko was born in 1946. Mr Vitaliy Vasilyevich Stasyuk was born
in 1980. Ms Tatyana Ivanovna Stasyuk was born in 1961. Ms Nina
Vasilyevna Plavshuk was born in 1948. Ms Svetlana Grigoryevna
Denisenko was born in 1960. Ms Nadezhda Ivanovna Glushchenko was born
in 1959. Ms Lyubov Ivanovna Shevchenko was born in 1950. All the
applicants live in the village of Kovshrovka, Kharkiv region.
- Between
1996 and 2001 the applicants instituted separate sets of proceedings
in the Kupyansk Court and the labour disputes commission (hereafter
“the Commission”), seeking the recovery of salary arrears
and other payments, against their former employer, the Joint Stock
Company “Kupyanskyi Liteinyi Zavod” (hereafter “the
Company”), in which the State held about 41% of the share
capital.
- Ms
Aleksandra Nikolayevna Girya was awarded a total of UAH 2,764.78
in salary arrears and compensation for moral damage (decisions of the
Commission of 3 September 1997 and 25 September 2000 and
judgment of the Kupyansk Court of 25 May 2001). The decisions remain
largely unenforced, the outstanding debt being UAH 1,863 (the
equivalent of EUR 264.72).
7. Ms
Anna Filipovna Seroshtan was awarded a total of UAH 2074.83 in
salary arrears (decisions of the Commission given in 1997 and
judgment of the Kupyansk Court of 13 August 2001). The decisions
remain largely unenforced, the outstanding debt being UAH 1,590 (the
equivalent of EUR 226.54).
- Ms
Yuliya Trofimovna Butenko was awarded UAH 1,598 (the equivalent
of EUR 227.70) in salary arrears (decision of the Commission of
5 March 2001). The decision remains unenforced.
- Ms
Svetlana Aleksandrovna Tur was awarded UAH 1,039 (the equivalent of
EUR 148.05) in salary arrears (decision of the Commission given in
1997). The decision remains unenforced.
- Mr
Nikolay Grigoryevich Kovalenko was awarded a total of UAH 2,413.45
in salary arrears and compensation for moral damage (judgment of the
Kupyansk Court of 3 July 2001). The judgment remains largely
unenforced, the outstanding debt being UAH 1,159 (the equivalent of
EUR 165.15).
- Ms
Raisa Yefimovna Kovalenko was awarded a total of UAH 3,735.95 in
salary arrears (judgment of the Kupyansk Court of 24 May 2001).
The judgment remains largely unenforced, the outstanding debt being
UAH 2,220 (the equivalent of EUR 316.31).
- Mr
Vitaliy Vasilyevich Stasyuk was awarded a total of UAH 1,543.90
in salary arrears and compensation for delay in payment of the salary
(judgment of the Kupyansk Court of 6 June 2001). The judgment remains
largely unenforced, the outstanding debt being UAH 1,236 (the
equivalent of EUR 176.11).
- Ms
Tatyana Ivanovna Stasyuk was awarded a total of UAH 2,876.04 in
salary arrears and compensation for moral damage (judgment of the
Kupyansk Court of 6 June 2001). The judgment remains largely
unenforced, the outstanding debt being UAH 1,613 (the equivalent
of EUR 229.82).
- Ms
Nina Vasilyevna Plavshuk was awarded UAH 946 (the equivalent of
EUR 134.78) in salary arrears (decision of the Commission given in
1997). The decision remains unenforced.
- Ms
Svetlana Grigoryevna Denisenko was awarded a total of UAH 2,888
in salary arrears (decisions of the Commission of 2 September
1997 and 28 October 1999). The decisions remain largely unenforced,
the outstanding debt being UAH 2,508 (the equivalent of EUR 357.32).
- Ms
Nadezhda Ivanovna Glushchenko was awarded UAH 910 in salary
arrears (decision of the Commission of 5 March 2001). The decision
remains largely unenforced, the outstanding debt being UAH 810
(the equivalent of EUR 115.40).
- Ms
Lyubov Ivanovna Shevchenko was awarded UAH 1,249 in salary
arrears (decision of the Commission of 14 October 1999). The decision
remains largely unenforced, the outstanding debt being UAH 1,200
(the equivalent of EUR 170.95).
- On
2 March 2001 the State Committee of Industrial Policy informed the
applicants that the financial situation of the Company was examined
by various State authorities. In particular, between 1997 and 1999
the Company was granted State funding for payment of salaries and
other social arrears. On 18 and 22 September 2000 the Cabinet of
Ministers established a commission made up of representatives from
the State Committee of Industrial Policy, the Ministries of Finance,
Economics and Labour, the State Property Fund and the Kharkiv
Regional State Administration. The development plan prepared by the
commission proposed to transfer the Company's non-productive assets
to the Kupyansk Municipality and to initiate bankruptcy proceedings
with the view to freezing its debts.
- According
to a letter of the Kupyansk Bailiffs' Service, the funds on the
Company's bank accounts were insufficient to pay the sums awarded to
the applicants and for this reason a part of the Company's property
was attached. However, its forced sale was suspended because of the
moratorium on the forced sale of property belonging to State
enterprises introduced by the Order of the President of Ukraine of 23
May 2001.
- When
on 8 May 2001 the Kharkiv Commercial Court instituted bankruptcy
proceedings against the Company, the Kupyansk Bailiffs' Service
suspended the enforcement proceedings.
THE LAW
-
The applicants complained about the State authorities' failure to
enforce the decisions of the Commission and the judgments of the
Kupyansk Court. They invoked Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which
provide, insofar 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 ....”
I. ADMISSIBILITY
- The
Government raised objections, contested by the applicants, regarding
exhaustion of domestic remedies similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement against
the State-owned companies (see e.g. Sokur v Ukraine (dec.),
no. 29439/02, 16 December 2003 and Trykhlib v.
Ukraine, no. 58312/00, §§ 39-43, 20 September
2005). The Court considers that these objections must be rejected for
the same reasons.
- The
Court concludes that the applicants' complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 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 these complaints inadmissible. The Court must therefore
declare them admissible.
II. MERITS
- In
their observations on the merits of the applicants' complaints, the
Government contended that there had been no violation of
Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1.
- The
applicants disagreed.
- The
Court notes that the decisions of the Commission and the judgments of
the Kupyansk Court remain largely unenforced for periods ranging from
five years and ten months to nine years and nine months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in a number of similar cases (see, for instance, Rudenko v.
Ukraine, no. 11412/02, 29 November 2005 and
Romashov v. Ukraine, no. 67534/01, 27 July
2004).
- Having
examined all the material in its possession, 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 Article 1 of Protocol No. 1.
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
applicants claimed the unsettled debts due to them under the
decisions and the judgments at issue (see paragraphs 6-17 above) by
way of compensation for pecuniary damage. Additionally, they claimed
UAH 5,000 (EUR 800) each in respect of non-pecuniary
damage.
- The
Government did not submit any comments on the applicants' claims for
pecuniary damage and agreed to pay them UAH 5,000 by way of
compensation for non-pecuniary damage in the event of the Court's
finding a violation.
- The
Court finds that the Government should pay the applicants the
outstanding debts due to them under the decisions and the judgments
at issue in order to satisfy their claim for pecuniary damage.
Additionally, it awards to each of the applicants EUR 800 by way
of compensation for non-pecuniary damage.
B. Costs and expenses
- The applicants did not submit any separate claim under
this head; the Court therefore makes no award under this head.
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 Protocol No. 1 to the Convention;
- Holds
(a) that the respondent State is to pay
to each of the applicants, within three months from the date on which
the judgment becomes final according to Article 44 § 2
of the Convention, the unsettled debts still owed to them, as
well as EUR 800 (eight hundred euros) each 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, plus any tax that may be chargeable;
(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.
Done in English, and notified in writing on 26 April 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
