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FIFTH
SECTION
CASE OF
GIMADULINA AND OTHERS v. UKRAINE
(Applications nos.
30675/06, 30785/06, 32818/06, 34468/06 and 49001/06)
JUDGMENT
STRASBOURG
10
December 2009
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 Gimadulina and
Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in five applications against Ukraine lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by
five Ukrainian nationals (“the applicants”):
no.
30675/06 lodged on 18 July 2006 by Mrs Yelena Vladimirovna
Gimadulina, who was born in 1969 and lives in Novogrodivka,
Donetsk region, Ukraine;
no. 30785/06
lodged on 17 July 2006 by Mr Andrey Aleksandrovich Konyayev,
who was born in 1969 and lives in Novogrodivka, Donetsk region,
Ukraine;
no.
32818/06 lodged on 1 August 2006 by Mrs Valentina Grigoryevna
Kozlova, who was born in 1948 and lives in Vinnytsya, Ukraine;
no.
34468/06 lodged on 7 August 2006 by Mr Anatoliy Klimentyevich
Dankov, who was born in 1938 and lives in Novogrodivka, Donetsk
region, Ukraine;
no.
49001/06 lodged on 25 November 2006 by Mr Mykola Oleksandrovych
Bondarenko, who was born in 1954 and lives in Vinnytsya,
Ukraine.
- Mrs
Kozlova was represented before the Court by Mr V. Shulgin,
a lawyer practising in Vinnytsya, Ukraine.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
15 October 2008 the President of the Fifth Section decided to
communicate to the Government the applicants’ complaints under
Articles 6 § 1 and 13 of the Convention, and Article 1
of Protocol No. 1. It was also decided to examine the merits of the
applications at the same time as their admissibility (Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On various dates each of the applicants received one or
more final decisions awarding payments by companies (see appendix for
details) in which the State holds at least 25% of the share capital,
and instituted enforcement proceedings to collect the payments.
- After
those decisions had become final, insolvency or liquidation
proceedings against the debtors were initiated. The State Bailiffs’
Service then terminated the enforcement proceedings against them and
transferred the applicants’ writs of enforcement to the
relevant liquidation commissions for further processing. Some of the
debtors were finally liquidated.
- In
view of the lengthy non-enforcement of the decisions in their favour,
some of the applicants (Mrs Gimadulina, Mr Konyayev and Mr Dankov)
unsuccessfully sued the State Bailiff’s Service for damages.
The other applicants complained to various State authorities, also to
no avail.
- Most
of the decisions in the applicants’ favour were enforced (see
appendix for details).
II. RELEVANT DOMESTIC LAW
- The relevant domestic law is set out in the judgment of
27 July 2004 in the case of Romashov v. Ukraine
(no. 67534/01, §§ 16-19).
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common factual
and legal background.
II. LENGTHY NON-ENFORCEMENT OF THE DECISIONS IN THE
APPLICANTS’ FAVOUR
- The
applicants complained that by failing to enforce the decisions given
in their favour the respondent State had violated Article 6 § 1
of the Convention and Article 1 of Protocol No. 1, which read,
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 ....”
They
also complained that they had no effective remedy for their
complaints, in breach of Article 13 of the Convention, which reads as
follows:
“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.”
A. Admissibility
1. The parties’ submissions
- The Government submitted that Mrs Kozlova and Mr
Bondarenko had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. In particular,
they maintained that these applicants had not availed themselves of
the opportunity to be registered as creditors in the insolvency and
liquidation proceedings against the debtor companies, and had failed
to challenge the liquidation commission’s inactivity before the
relevant commercial court or apply to any domestic court to challenge
the allegedly inadequate enforcement by the Bailiffs’ Service
of the decisions in their favour.
- The
Government further contended that Mr Bondarenko had received the
payment relating to the decision of 5 June 2002 by November 2004. In
support they provided copies of letters from the debtor dated
2 November 2004 and 17 March 2005, stating that salary
arrears had been paid to the applicant, and a letter from the State
Bailiffs’ Service apparently sent to the applicant in 2005 (no
date specified) stating that he had been paid the total amount of
3,370.67 Ukrainian hryvnias (UAH) (about 680
euros (EUR)) in the period between September and November 2002.
Although they could not substantiate their argument with more
convincing evidence, as the relevant enforcement documents had been
destroyed, they requested the Court to declare that part of his
application incompatible ratione personae. Later, commenting
on the applicant’s just satisfaction claims, the Government
stated that they had no objection to the enforcement of the decisions
taken in the applicant’s favour.
- The
applicants disagreed. In particular, Mr Bondarenko pleaded that the
decision of 5 June 2002 was still unenforced and submitted in support
a copy of the final court decision of 24 February 2006, in which
the court acknowledged the ongoing failure of the Bailiffs’
Service to enforce the impugned decision.
2. The Court’s assessment
- As
regards the Government’s objection that the applicants had
failed to exhaust domestic remedies, the Court notes that similar
objections have already been rejected in a number of judgments
adopted by the Court (see Sokur v. Ukraine (dec.),
no. 29439/02, 16 December 2003; Sychev v. Ukraine,
no. 4773/02, §§ 42-46, 11 October 2005; and
Trykhlib v. Ukraine, no. 58312/00, §§ 38-43,
20 September 2005). The Court considers that these
objections must be rejected in the instant case for the same reasons.
- As
to the question whether the decision of 5 June 2002 has been
enforced, the Court, having regard the quality of proof submitted by
the parties in support of their contentions and the Government’s
position set out in the later stages of the present proceedings,
considers that the decision in question has still not been enforced
for the purposes of the case at hand.
- The
Court further points out that the judgment of 27 October 2006 taken
in favour of Mrs Kozlova was enforced by 1 October 2007, that is
within less than a year. Such a period cannot, in the Court’s
view, be considered unreasonable. In these circumstances, the Court
considers that that part of application no. 32818/06 must be rejected
as manifestly ill-founded pursuant to Article 35 §§ 3 and 4
of the Convention.
- The
Court notes that the remaining complaints 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. They must therefore be declared admissible.
B. Merits
- The
Government advanced their standard arguments for cases concerning the
lengthy non-enforcement of domestic court judgments and concluded
that there had been no violation of Articles 6 § 1 or 13 of the
Convention or of Article 1 of Protocol No. 1.
- The
applicants disagreed.
- The
Court notes that the decisions in the applicants’ favour
remained unenforced for at least two years and five months.
- The
Court reiterates that it has already found violations of
Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1 in similar cases
(see, among other authorities, Voytenko v. Ukraine,
no. 18966/02, §§ 43, 48 and 55, 29 June 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 Articles 6 § 1
and 13 of the Convention and a violation of Article 1 of
Protocol No. 1 in respect of the lengthy non-enforcement of the
decisions in the applicants’ favour in the present
applications.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Mr
Bondarenko also complained under Article 17 of the Convention with
respect to the lengthy non-enforcement of the decisions taken in his
favour.
- Having
carefully considered the complaint, as presented by the applicant, in
the light of all the material in its possession, the Court finds
that, in so far as the matter complained of is within its competence,
it does not disclose any appearance of a violation of the invoked
provision.
- 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.
IV. 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 different
amounts (see appendix) in respect of pecuniary and non-pecuniary
damage.
- The
Government contested most of these claims as excessive and
unsubstantiated.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the decisions at issue. It further
dismisses the remainder of the applicants’ claims for pecuniary
damage as unsubstantiated (see, a contrario, Maksimikha v.
Ukraine, no. 43483/02, § 29, 14 December 2006).
The Court further awards, on an equitable
basis, the following amounts in respect of non-pecuniary damage:
B. Costs and expenses
- Some
of the applicants also claimed various amounts (see
appendix) for the costs and expenses incurred before the
domestic courts and for those incurred before the Court.
- The
Government contested most of these claims as excessive and
unsubstantiated.
- According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum.
- The
Court observes that these requirements have not been met in the
instant case. In particular, Mrs Gimadulina, Mr Konyayev and Mr
Dankov merely submitted copies of postal vouchers without claiming a
specific amount in respect of costs and expenses. Regard being had to
the information in its possession and the above criteria, the Court
rejects the claims for costs and expenses in the domestic proceedings
but considers it reasonable to award appropriate sums for the
proceedings before the Court (see appendix).
Although the sums substantiated by Mrs Gimadulina and
Mr Konyayev are very small, it is obvious that they have
incurred more postal expenses than those claimed in making their
applications to the Court. For this reason the Court awards them
EUR 10 each under this head.
- As
to the claim by Mrs Kozlova, who was legally represented in the
present proceedings, the Court notes that her case is not
particularly complex and that she was not required to be legally
represented. Furthermore, she failed to comply with the requirements
set out in the paragraph 34 above. Regard being had to the
information in its possession and to the above considerations, the
Court rejects this claim.
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
1. Decides to join
the applications;
- Declares the complaints under Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
to the Convention in respect of the lengthy non-enforcement of the
decisions in the applicants’ favour (except the ones concerning
the lengthy non-enforcement of the judgment of 27 October 2006 in
application no. 32818/06) admissible and the remainder of the
applications inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 the applicants, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, the outstanding debts under the decisions
given in the applicants’ favour and the
following amounts for non-pecuniary damage and costs and expenses:
Mrs Gimadulina –
EUR 350 (three hundred and fifty euros) in respect of
non-pecuniary damage and EUR 10 (ten euros) in respect of costs
and expenses;
Mr Konyayev –
EUR 350 (three hundred and fifty euros) in respect of
non-pecuniary damage and EUR 10 (ten euros) in respect of costs
and expenses;
Mrs Kozlova –
EUR 800 (eight hundred euros) in respect of non-pecuniary
damage;
Mr Dankov –
EUR 350 (three hundred and fifty euros) in respect of
non-pecuniary damage; and
Mr Bondarenko –
EUR 2,600 (two thousand six hundred euros).
(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 to the applicants;
(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 applicants’
claims for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
Appendix
|
|
Appl. no.
|
Applicant
|
Decision
taken in the applicant’s favour on
|
Sum
awarded (UAH)
|
Enforcement
proceedings initiated on
|
Sum
paid (UAH)
|
Outstanding
debt (UAH)
|
Debtor
|
Just
satisfaction claims
|
Just
satisfaction award
|
|
Pecuniary
damage
|
Non-pecuniary
damage
|
Costs
and expenses
|
-
|
30675/06
|
Gimadulina
Yelena Vladimirovna
|
29
October 2004, Novogrodivka Town Court
|
500
≈ EUR 75.80
|
7
February 2005
|
Enforced
on 6 March 2009
|
Subdivision
of the Selydivvugillya
State Company
(Структурний
підрозділ
«Виробниче
управління
теплофікації»
ДП «Селидіввугілля»)
|
EUR 100
|
EUR 3,500
|
Costs
and expenses in the domestic proceedings
+
UAH 24.04
≈
EUR 2
(incurred
before the Court)
|
EUR 350
(in
respect of non-pecuniary damage)
+
EUR 10
(in
respect of costs and expenses)
|
-
|
30785/06
|
Konyayev
Andrey
Aleksandrovich
|
29
October 2004, Novogrodivka Town Court
|
500
≈ EUR 75.80
|
7
February
2005
|
Enforced
on 6 March 2009
|
Subdivision
of the Selydivvugillya
State Company
(Структурний
підрозділ
«Виробниче
управління
теплофікації»
ДП «Селидіввугілля»)
|
EUR 100
|
EUR 3,500
|
Costs
and expenses in the domestic proceedings
+
UAH 28.79
≈
EUR 2
(incurred
before the Court)
|
EUR 350
(in
respect of non-pecuniary damage)
+
EUR 10
(in
respect of costs and expenses)
|
-
|
32818/06
|
Kozlova
Valentina
Grigoryevna
|
18
April 2005, Zamostyansky District Court of Vinnytsya
|
20,241.61
≈ EUR 2,992.18
|
10
May 2005
|
Enforced
on 1 October 2007
|
State
Company
Agat
(ДП Спеціальне
конструкторсько-технологічне
бюро «Агат»)
(liquidated
on 15 November 2007)
|
EUR 3,000
|
Left
to the Court’s discretion
|
Left
to the Court’s discretion
|
EUR 800
(in
respect of non-pecuniary damage)
|
|
27
October 2006, Zamostyansky District Court of Vinnytsya
|
4,822.10
≈ EUR 791.13
|
28
November 2006
|
Enforced
on 1 October 2007
|
-
|
-
|
-
|
-
|
-
|
34468/06
|
Dankov
Anatoliy Klementyevich
|
29
October 2004, Novogrodivka Town Court
|
500
≈ EUR 75.80
|
7
February
2005
|
Enforced
on 6 March 2009
|
Subdivision
of the Selydivvugillya
State Company
(Структурний
підрозділ
«Виробниче
управління
теплофікації»
ДП «Селидіввугілля»)
|
EUR 100
|
EUR 3,500
|
Costs
and expenses in the domestic proceedings
|
EUR 350
(in
respect of non-pecuniary damage)
|
-
|
49001/06
|
Bondarenko
Mykola
Oleksandrovych
|
5
June 2002, Labour Disputes Commission
|
4,351
≈ EUR 895.85
|
12
June 2002
|
According
to the Government, enforced by November 2004
According
to the applicant, the debt is still unpaid
|
DPVO
Khimprom
(ДПВО
«Хімпром»)
|
Outstanding
indexed debts under the domestic decisions
|
EUR 30,000
|
-
|
EUR 2,600
(in
respect of non-pecuniary damage)
|
|
20
December 2004, Zamostyansky District Court of Vinnytsya
|
13,602.08
≈ EUR 1,953.69
|
Not
specified
|
1,472.47
|
12,129.61
|
