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FIFTH
SECTION
CASE OF DEDUKH v. UKRAINE
(Application
no. 14394/04)
JUDGMENT
STRASBOURG
31
January
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 Dedukh v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Javier
Borrego Borrego,
Renate
Jaeger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having deliberated in private on 8
January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14394/04) 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 Ludmila Nikolayevna
Dedukh (“the applicant”), on 13 March 2004.
- The
applicant was represented by Ms N. N. Svirnevsakya, a lawyer
practising in Khmelnitskiy. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Yuriy Zaytsev.
- On
15 May 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
applicant was born in 1957 and lives in the city of Khmelnitskiy.
- The
applicant is a former military serviceperson. She retired in
June 2001.
- On
22 April 2003 the Khmelnytsky City Court ordered the military unit
A-0264 to pay the applicant UAH 2,207
in salary arrears. This judgment became final on 23 May 2003.
- On
16 January 2004 the Pershotravnevy Bailiffs' Office of Chernivtsi
(hereinafter “the Bailiffs”) returned the writ of
execution to the applicant due to the lack of funds on the debtor's
bank account.
- On
5 April 2004 the Shevchenkivsky District Court of Chernivtsi rejected
the applicant's claim against the alleged inactivity of the Bailiffs.
- On
13 February 2006 the Bailiffs re-opened the enforcement proceedings
and on 20 February 2006 joined them to other enforcement proceedings
pending against the debtor.
- On
28 July 2006 the Bailiffs returned the writ of execution to the
applicant due to the lack of funds on the debtor's bank account.
- The
judgment of 22 April 2003 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Voytenko
v. Ukraine (no. 18966/02, 29 June 2004) and Romashov
v. Ukraine (no. 67534/01, 27 July
2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No.1 TO THE CONVENTION
- The
applicant complained about the State authorities' failure to enforce
the judgment of 22 April 2003 in due time. She invoked Article 6 § 1
of the Convention and Article 1 of Protocol No. 1, which, in so far
as relevant, provide 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 or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government raised objections, contested by the applicant, similar to
those already dismissed in a number of the Court's judgments
regarding non-enforcement against the State institutions (see
Voytenko v. Ukraine, cited above, §§ 27-31
and Romashov v. Ukraine, cited above, §§ 28-32).
The Court considers that these objections must be rejected for the
same reasons.
- The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention raises issues of fact and law under the Convention,
the determination of which requires an examination of the merits. It
finds no ground for declaring this complaint inadmissible. The Court
must therefore declare it admissible.
B. Merits
- The
Government contended that the delay in enforcement of the judgment
given in the applicant's favour was not unreasonable and due to the
lack of funds in the State budget. The Government also maintained
that the was no omission by the Bailiffs.
- The
applicant disagreed.
- The
Court notes that the judgment of 22 April 2003 remains unenforced for
four years and six months after it became final on 23 May 2003.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases raising issues similar to the present application (see, for
instance, Shmalko v. Ukraine, no. 60750/00, 20 July 2004
and Voytenko v. Ukraine, cited above).
- 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.
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
applicant claimed the judgment debt owed to her and 3,000 euros
(EUR) in respect of pecuniary and non-pecuniary damage.
- The
Government found this claim unsubstantiated and exorbitant.
- In
so far as the applicant claimed the amount awarded to her by the
judgment at issue, the Court considers that the Government should pay
her the outstanding debt (see paragraph 5 above) in settlement of her
pecuniary damage. As to the remainder of the applicant's just
satisfaction claims, the Court, making its assessment on an equitable
basis, as required by Article 41 of the Convention, awards the
applicant EUR 1,800 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant requested EUR 300 in compensation for legal aid expenses
incurred in the context of the proceedings before the Court.
- The
Government contested the claim.
- Regard
being had to the information in its possession and the above
criteria, the Court rejects this claim.
- The
applicant also claimed EUR 7 for the postal expenses incurred in the
context of the enforcement proceedings and proceedings before the
Court. The Court considers it reasonable to award the applicant this
sum.
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 of Protocol No. 1;
- 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,
the
judgment debt still owed to her;
EUR
1,807 (one thousand eight hundred and seven euros) in respect of
non-pecuniary damage and costs and expenses, plus any tax that may be
chargeable;
(b) that
the above amounts shall 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;
(c) 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 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
