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FIFTH
SECTION
CASE OF VOROTNIKOVA v. UKRAINE
(Application
no. 1225/02)
JUDGMENT
STRASBOURG
14
February 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 Vorotnikova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Javier
Borrego Borrego,
Renate
Jaeger,
Mark
Villiger,
judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1225/02) 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 Raisa Mikhaylovna
Vorotnikova (“the applicant”), on 28 November 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
23 January 2007 the Court decided to give notice of 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 1940 and lives in the village of Zidki, Kharkiv
region, Ukraine.
A. Judicial proceedings
- In December 2000 the applicant, a teacher by
profession, brought proceedings against the Department of Education
of the Leninskyy District of Kharkiv (Ленінський
районний відділ
освіти м.
Харкова,
hereafter “the Department”)
claiming salary arrears, various teachers' allowances allegedly due
to her and a compensation for non-pecuniary damage.
- On 4 January 2001 the Zmiyivskyy District Court
(Зміївський
районний суд,
hereafter, “the Zmiyivskyy Court”) found against the
applicant. The applicant appealed. On 13 February 2001 the Kharkiv
Regional Court (Харківський
обласний суд)
quashed this judgment in part concerning the teachers' allowances and
remitted the case for a fresh consideration. The remainder of the
judgment was upheld.
- On 31 May 2001 the Zmiyivskyy Court found in part for
the applicant and awarded her 1,386.06
Ukrainian hryvnias (UAH) in compensation for teachers' allowances.
This judgment was not appealed against within the statutory
time-limit and thus became final and enforceable.
- By a separate procedural decision of the same date the
Zmiyivskyy Court rejected the applicant's request to institute
proceedings before the Constitutional Court (Конституційний
Суд України)
on compliance of the 1999 Law on Secondary
Education with the Constitution of Ukraine.
- On 3 July 2001 the Zmiyivskyy Court corrected an
arithmetical mistake in its judgment of 31 May 3001 and changed the
amount of the applicant's award to UAH 1,499.29.
- On the same date the Department filed an appeal
against the judgment of 31 May 2001. On 10 July 2001 the Zmiyivskyy
Court declared this appeal inadmissible as being lodged out of time.
On 3 December 2001 the same court found inadmissible the Department's
appeal against the decision of 10 July 2001 as it had been signed by
an unauthorised person. The Department appealed.
- On 19 February 2002 the Kharkiv Regional Court of
Appeal (Апеляційний
суд Харківської
області, the
former Kharkiv Regional Court as renamed on 29 June 2001)
quashed the decision of 3 December 2001 and remitted the question of
the admissibility of the appeal against the decision of 10 July 2001
for a fresh consideration. The applicant filed an appeal in cassation
against this decision.
- On 28 May 2002 the Supreme Court (Верховний
Суд України)
upheld the decision of 19 February 2002. On 13 September 2002 the
Supreme Court refused the applicant's request to review this matter
on the ground of new circumstances.
- On 26 June 2003 the Zmiyivskyy Court again declared
the Department's appeal inadmissible as being signed by an
unauthorised person.
- On 14 October 2003 the applicant requested leave to
lodge an appeal under the new cassation procedure against the first
instance judgment of 4 January 2001 and appeal decision of 13
February 2001 whereby her claims for salary arrears and moral damages
were rejected and the Zmiyivskyy Court's judgment of 31 May 2001 in
which her claims for allowances had not been allowed in their
eternity.
- On 15 April 2004 the Supreme Court refused the
applicant leave to appeal under the new cassation procedure.
B. Enforcement proceedings
- On 3 August 2001 the Bailiffs' Service of the Leninsky
District of Kharkiv (Відділ
державної
виконавчої
служби Ленінського
районного
управління
юстиції м. Харкова,
hereafter, “the Bailiffs' Service”)
instituted enforcement proceedings in respect of the
Zmiyivskyy Court's judgment of 31 May 2001.
- According to the Government, by letter of 26 September
2001 a judge of the Zmiyivskyy Court informed the Bailiffs' Service
about the appeal against the judgment of 31 May 2001, filed by the
Department (see paragraph 10 above), and indicated that it was
necessary to suspend the enforcement proceedings pending the outcome
of the appeal proceedings. Thereupon the Bailiffs' Service suspended
the enforcement proceedings. The Government added that the
destruction of the materials relating to the enforcement proceedings
upon expiry of the archiving period prevented them from submitting
relevant copies.
- On 10 October 2003 the enforcement proceedings were
terminated because the amount, awarded to the applicant by the
judgment of 31 May 2001 was paid to her in full.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law is summarised in the
judgment of Romashov v. Ukraine (no. 67534/01, §§
16-18, 27 July 2004).
- Article
34 § 6 of the Law of Ukraine of 21 April 1999 “on
Enforcement Proceedings”, as in force at the relevant time,
provided the following:
“the enforcement proceedings are subject to
obligatory suspension if:
...
6) a ruling to suspend enforcement proceedings is issued
by an official authorised by law to issue it;”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 IN RESPECT OF
NON-ENFORCEMENT OF A COURT JUDGMENT
- The
applicant complained of the length of proceedings in her case and the
lengthy non-enforcement of the judgment in her favour. She relied on
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 ....”
A. Admissibility
- The Government argued that the applicant lost her
victim's status after the execution of the court judgment in her
favour.
- The Court notes that this objection is similar to that
already dismissed by the Court in a number of judgments (see, for
example, Romashov v. Ukraine, no. 67534/01, §§
26-27, 27 July 2004 and Gavrilenko v. Ukraine, no. 24596/02,
§ 19, 20 September 2005). The Court considers that in the
present case this objection must be rejected for the same reasons.
- The Court, noting that the court proceedings and the
enforcement proceedings are stages one and two in the total course of
proceedings and thus the enforcement proceedings should not be
dissociated from the action and the proceedings are to be examined in
their entirety (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 197 and, as a recent authority,
Sika v. Slovakia, no. 2132/02, §§ 24-27,
13 June 2006), concludes that the applicant's complaints under
Article 6 § 1 of the Convention about the length of the
proceedings concerning compensation and about the delay in the
enforcement of the Zmiyivskyy Court's judgment of 31 May 2001 are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. These complaints must therefore be declared
admissible. For the same reasons, the applicant's complaint under
Article 1 of Protocol No. 1 about the authorities'
failure to enforce a judgment in her favour cannot be declared
inadmissible.
B. Merits
- In
their observations, the Government contended that there had been no
violation of Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1 (as in the cases of Romashov, cited
above, § 37, and Voytenko, cited above § 37).
They also maintained that the overall length of the proceedings was
reasonable in the circumstances.
- The
applicant disagreed.
- As
regards the judicial stage of proceedings, it is to be noted that the
applicant's claim was lodged with the court in December 2000. The
final decision in this case was taken on 31 May 2001 by the
Zmiyivskyy Court. Subsequently the Department, a defendant in these
proceedings, unsuccessfully attempted to file an appeal out of time.
This appeal was eventually rejected on 26 June 2003. The applicant
lodged an equally unsuccessful request for leave to appeal under the
new cassation procedure, an ineffective remedy in respect of the
cases finally decided before 29 June 2001 (see Prystavska
v. Ukraine (dec.), no. 21287/02, 17 December 2002).
Therefore, the judicial proceedings on the merits of the applicant's
claims lasted for five months, followed by a period of almost two
years for considering the admissibility of the defendant's appeal
lodged out of time.
- The Court observes that the final judgment of the
Zmiyivskyy Court of 31 May 2001 therefore remained unenforced for
over two years and three months.
- The Government seem to implicate that the lengthy
non-enforcement was not imputable to the State authorities because
the enforcement had to be suspended in view of the pending appeal
proceedings. The Court notes the reasons advanced by the respondent
Government for not having filed copies of the judge's letter of 26
September 2001 (see paragraph 17 above) nor of any formal ruling on
the suspension of the enforcement proceedings, pursuant to Article 34
§ 6 of the 1999 Law “on Enforcement Proceedings”, as
in force at the material time. In any event, the Court considers that
the Government did not explain the lengthy delay in the said appeal
proceedings which were limited to rather simple admissibility
questions, the Zmiyivskyy Court having found as early as on 10 July
2001 that the appeal had been lodged out of time.
- 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
example Sokur v. Ukraine, no. 29439/02,
§§ 34-37, 26 April 2005, and Zhovner v. Ukraine,
no. 56848/00, §§ 33-40 and 45-56, 29 June 2004).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 and 13 of the Convention about
the outcome of the proceedings in her case. The applicant complained
that the courts failed to protect effectively her rights and, in
particular, that the first instance court did not allow her request
to institute proceedings before the Constitutional Court of Ukraine.
- The
applicant also complained under Article 1 of Protocol No. 1 that the
failure of the courts to allow her claims in full violated her
property rights.
- The
applicant finally invoked Articles 1, 17 and 53 of the Convention.
- The
Court, in the light of all material before it and in so far as these
remaining complaints fall within its competence, finds that they do
not disclose any appearance of an unjustified interference or breach
of these provisions and rejects this part of the application in
accordance with Article 35 §§ 3 and 4 of the
Convention as being manifestly ill-founded.
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.”
- On 11 May
2007, after having received the Government's observations on the
admissibility and merits of the applicant's complaints, the Court
invited the applicant to submit her claims for just satisfaction by
25 June 2007 (Rule 60 of the Rules of Court). The
applicant, however, submitted her claims only on 19 July 2007, i.e.
outside the fixed time limit. As no extension of the allotted
period was made before its expiry, the President of the Chamber,
pursuant to Rule 38 § 1 of the Rules of Court, decided not to
include these submissions in the case file for the consideration of
the Court.
- In
these circumstances, the Court makes no award under Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 § 1
of the Convention in respect of the allegedly excessive length of
court and enforcement proceedings in the applicant's case and Article
1 of Protocol No. 1 concerning the lengthy non-enforcement of a court
judgment in the applicant's favour admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that has been a violation of Article 1 of
Protocol No. 1;
- Decides to make no award under Article 41 of the
Convention.
Done in English, and notified in writing on 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
