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FIFTH
SECTION
CASE OF GAYEVSKAYA v. UKRAINE
(Application
no. 9165/05)
JUDGMENT
STRASBOURG
24 July
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 Gayevskaya v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 1 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9165/05) 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 Yekaterina
Pavlovna Gayevskaya (“the applicant”), on 23
February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
- On
7 September 2005 the Court decided to communicate the applicant’s
complaints under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 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 1949 and lives in Novogrodivka, Donetsk region,
Ukraine.
- On 8 May 2002 the Novogrodivka
Town Court ordered the Novogrodivka Mining Company No. 1/3 –
a State-owned enterprise – to pay the applicant arrears of
compensation for loss of breadwinner, i.e. her husband, in the amount
of 1,285.58
Ukrainian hryvnas (UAH).
- This judgment became final and on
6 August 2002 the Novogrodivka Town Bailiffs’ Service
initiated the enforcement proceedings.
- In April 2004 the applicant
instituted proceedings in the Novogrodivka Town Court against the
Novogrodivka Town Bailiffs’ Service claiming compensation for
the lengthy non-enforcement of the judgment in her favour. On 12
August 2004 the court found against the applicant.
On 14 October 2004 the Donetsk
Regional Court of Appeal upheld this judgment. The applicant
lodged a cassation appeal with the Supreme Court of Ukraine.
According to her, in April 2005 the proceedings were still pending.
The applicant did not provide the Court with any further information
in this regard.
- On
19 October 2005 the Bailiffs’ Service discontinued the
enforcement proceedings on the ground that the judgment of 8
May 2002 had been enforced in full. The applicant did not
contest this decision.
II. RELEVANT
DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about the lengthy non-enforcement of the
judgment of 8 May 2002. In this regard
she invoked Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1, which 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.
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 did not submit any observations on the admissibility of
the application.
- The Court notes that this part of 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
- The Government maintained that the
responsibility of the State in this situation was limited to the
organisation and proper conduct of enforcement proceedings and
that the length of the enforcement proceedings had been caused by the
critical financial situation of the debtor company and the energy
sector of the Ukrainian economy in general. The Government contended
that the Bailiffs’ Service had done everything necessary and
could not be blamed for the delay. The regularity of the enforcement
proceedings in the present case had been confirmed by the domestic
courts. The Government finally argued that the State could not be
considered responsible for the debts of its enterprises.
- The
applicant disagreed. In particular, she argued that the judgment of
the Novogrodivka Town Court of 8 May 2002 had not been enforced.
- The
Court observes that it is not clear from the parties’
submissions whether this judgment was enforced in full. However, it
assumes that the judgment was so enforced by 19 October 2005,
given the fact that, on that date, the Bailiffs’ Service
established that the amounts due had been paid to the applicant in
full, which the applicant did not contest at the national level (see
e.g. Gavrilenko v. Ukraine, no. 24596/02, § 18,
20 September 2005).
- The Court further notes that the judgment in the
applicant’s favour remained unenforced for more than three
years and five 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 cases like the
present application (see, the Sokur judgment, cited
above, §§ 30-37, and Shmalko v. Ukraine, no.
60750/00, §§ 55-57, 20 July 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 has, accordingly, been a violation of
Article 6 § 1 of the Convention in respect of the
lengthy non-enforcement of the judgment in the applicant’s
favour and a violation of Article 1 of Protocol No. 1 in
the present application.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant also complained under Article 13 of the
Convention that a cassation appeal to the
Supreme Court of Ukraine could not be considered an effective remedy
because the examination of such an appeal in her case had been too
lengthy.
- The Court recalls that a
cassation appeal to the Supreme Court of Ukraine is considered by the
Court to be an effective remedy (see Vorobyeva
v. Ukraine (dec.),
no. 27517/02, 17 December 2002). As to the length of
the examination of the applicant’s cassation appeal, the Court
observes that in April 2005 the proceedings were pending before the
Supreme Court of Ukraine and that the applicant did not
provide any further information in this regard. However, even
assuming that the proceedings in question are still
pending, the Court notes that at present the overall length of
proceedings amounts to four years and one month, which cannot be
regarded as excessive.
- It follows that this part of the application must be
rejected 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 EUR 7,970 in respect of pecuniary and non pecuniary
damage.
- The
Government maintained that the applicant had not substantiated her
claims.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non pecuniary damage. Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court
awards the applicant EUR 650 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 100 in costs and expenses.
In this respect she provided vouchers for expenditure
amounting in total to UAH 40.17.
- The
Government contended that the applicant had failed to substantiate
her claims and requested the Court to reject them.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his 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 sum of EUR 6.
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 Article 6 § 1
of the Convention and Article 1 of Protocol No.1 admissible and the
remainder of the application inadmissible;
- 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 of the Convention;
- 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 following
amounts, plus any tax that may be chargeable to
the applicant:
(i) EUR
650 (six hundred fifty euros) in respect of non-pecuniary damage;
(ii) EUR
6 (six euros) in respect of costs and expenses;
(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;
(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 24 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
