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FIFTH
SECTION
CASE OF OTYCHENKO AND FEDISHCHENKO v. UKRAINE
(Applications
nos. 1755/05 and 25912/06)
JUDGMENT
STRASBOURG
12
March 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 Otychenko and
Fedishchenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 1755/05 and 25912/06)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mrs Natalya Yuryevna Otychenko and Mrs Valentyna Volodymyrivna
Fedishchenko (“the applicants”), on 30 December 2004
and 14 June 2006 respectively.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
11 September 2007 the Court decided to communicate the applicants'
complaints under Article 6 § 1 of the Convention to the
Government. 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
A. Mrs Otychenko
- The
applicant was born in 1962 and currently lives in Sevastopol, the
Autonomous Republic of the Crimea, Ukraine.
- At the material time she worked at the Housing
Maintenance and Utilities Enterprise “Kotelnikovo”
(Управління
житлово-комунального
господарства
«Котельниково»),
a municipal enterprise set up and owned by local village council. The
labour contract with the applicant was signed by that village
council. Subsequently she resigned.
- On
16 December 2002 the Krasnogvardeyskiy District Court of the
Autonomous Republic of the Crimea awarded the applicant
3,151.25 Ukrainian hryvnias (UAH)
in salary arrears and other payments due to
her by her former employer.
- This
judgment became final and on 30 January 2003 the State Bailiffs'
Service instituted proceedings to enforce it. According to the
Government, in the course of these proceedings the total amount of
UAH 357.97 was paid to the applicant. The applicant, in her
turn, contested that she had ever been paid any sum under the
judgment.
- In
September 2003 the applicant instituted another set of proceedings
against her former employer seeking additional compensation for
salary arrears. On 1 February 2005 the court dismissed her claim. The
applicant did not appeal against this judgment.
- On
15 December 2004 the enforcement proceedings were terminated for lack
of funds of the debtor enterprise. The applicant did not challenge
this decision before the domestic courts; nor had she reintroduced
her writ of enforcement with the State Bailiffs' Service.
- On
26 January 2006 the Commercial Court of the Autonomous Republic of
the Crimea initiated liquidation proceedings against the debtor
enterprise. These proceedings were terminated on 26 February 2007 and
the enterprise was removed from the relevant enterprises' register.
The applicant did not raise her creditor claims within these
proceedings.
- The
judgment of 16 December 2002 remains unenforced.
B. Mrs Fedishchenko
- The
applicant was born in 1953 and lives in Pyatykhatky, the
Dnipropetrovsk region, Ukraine.
- On 11 April and 1 October 2003 the Pyatykhatky
District Court of Dnipropetrovsk Region awarded the applicant
UAH 1,705.14 and UAH 570.41,
respectively, in salary arrears due to her by her former employer,
the Pyatykhatky Municipal Plumbing Company
(Комунальне
підприємство
водопровідно-каналізаційного
господарства
в м. П'ятихатки)
set up, owned and managed by local town council.
- These
judgments became final and on 30 April 2003 and 30 March 2004,
respectively, the State Bailiffs' Service instituted proceedings to
enforce them.
- The
applicant complained to various State authorities about lengthy
non-enforcement of the judgments in her favour but to no avail.
- On
15 May 2007 the awarded amounts were paid to the applicant.
II. RELEVANT DOMESTIC LAW
- The general provisions of domestic legislation on
enforcement of judicial decisions are set out in the judgment of
27 July 2004 in the case of Romashov v. Ukraine
(no. 67534/01, §§ 16-19).
- The
provisions of the Civil Code of 18 July 1963 (repealed on 1 January
2004) and the Civil Code of 16 January 2003 (in force since 1 January
2004) on owner's liability for the obligations of its legal entity
are set out in the case of Mykhaylenky and Others v. Ukraine,
nos. 35091/02 and foll., §§ 25-26, ECHR 2004 XII).
19. Article
143 of the 1996 Constitution of Ukraine provides:
“Territorial communities of a
village, settlement and city, directly or through the bodies of local
self-government established by them, manage the property that is in
municipal ownership; [...] establish, reorganise and liquidate
municipal enterprises, organisations and institutions, and also
exercise control over their activity; [...].”
20. Article
31 of the Property Act 1991 (repealed
by the Act of 27 April 2007)
provides that the State property includes the State property itself
and the property of administrative-territorial units
(municipal property).
- By
letter of 27 December 2004 the Ministry of Justice of Ukraine, having
analysed the then current legislation, concluded, inter alia,
that the State and municipal property were different types of
property.
- Article
78 “Municipal unitary enterprises” of the Commercial Code
of Ukraine (in force since 1 January 2004) provides that municipal
unitary enterprises are set up by competent body of local
self-government and are managed by it. A municipal
unitary enterprise holds assets under the right of economic
management (for municipal commercial enterprises) or operative
management (for municipal non-commercial enterprises). A municipal
unitary enterprise is managed by the head of that enterprise
appointed by the body which it is subordinate to.
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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained about the State authorities' failure to enforce
the judgments taken in their favour in due time.
The
Court will examine the complaints under Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- Relying on the provisions of national legislation
(among others, the 1963 and 2003 Civil Codes, the 1991 Property Act
and the 1997 Local Self-Government Act), the Government submitted
that they were not responsible for the debts of the municipal
enterprises. In particular, they maintained that the debtor
enterprises had full economic control over property transferred to
them by local authorities, which had founded them, and enjoyed the
income from that property. They further stated that the debtor
enterprises were independent in their commercial activity from the
State (e.g. that they had their own financial balance, bank accounts;
that the debtor enterprises were not funded from the State budget).
The Government further submitted that Mrs Otychenko had failed
to exhaust domestic remedies as required by Article 35 § 1
of the Convention. In particular, they maintained that she had not
availed herself of the opportunity to be registered as creditor in
the insolvency and liquidation proceedings pending against the debtor
enterprise, and had failed to challenge the liquidation commission's
inactivity before the relevant commercial court or apply to any
domestic court against the Bailiffs' Service to challenge the
allegedly inadequate enforcement of the judgment in her favour.
The Government also challenged the victim status of Mrs Fedishchenko
as the awarded amounts had been already paid to her on 15 May
2007.
- The Court recalls that a State is accountable for the
debts of enterprises owned and controlled by its local authorities to
the same extent as it is accountable for the debts of State-owned
enterprises (see, mutatis mutandis, Aleksandrova v. Russia,
no. 28965/02, §§ 17 and 18, 6 December 2007). In this
connection the Court notes that the debtor enterprises in the
applicants' cases were of a municipal nature, that is, they were
owned and controlled by local authorities (see paragraphs 5 and 13,
respectively) the actions and/or omissions of which are attributed to
the respondent State. Accordingly, the Court dismisses the
Government's objection.
- As
regards the Government's objection that Mrs Otychenko 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 this objection
must be rejected in the instant case for the same reasons.
- In
so far as the Government object to the victim status of
Mrs Fedishchenko, the Court notes that the
fact that the judgments in question were enforced does not deprive
the applicant of her victim status in relation to the period during
which they remained unenforced (see Romashov,
cited above, §§ 26-27). Accordingly, the Court
dismisses the Government's objection.
- The Court notes that the applications 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
- In
their observations on the merits of the applicants' claims, the
Government contended that there had been no violation of Article 6 §
1 of the Convention.
- The
applicants disagreed.
- The
Court notes that the judgments in the applicants' favour remained
unenforced for five years and one month, at least.
- The
Court reiterates that it has already found violations of
Article 6 § 1 of the Convention in cases like the
present applications (see, among other authorities, Kucherenko v.
Ukraine, no. 27347/02, § 25, 15 December 2005).
- Having
examined all the materials 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 in respect of the lengthy non-enforcement of the
judgments in the applicants' favour in the present applications.
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
- Mrs
Otychenko claimed the outstanding debt under the judgment in her
favour. She also asked that the judgment debt be indexed to the rate
of inflation, though she did not indicate the sums in question. The
applicant further claimed UAH 50,000
in respect of non-pecuniary damage.
- Mrs
Fedishchenko claimed UAH 5,000
in respect of non-pecuniary damage.
- The
Government contested these claims as excessive and unsubstantiated.
- The
Court finds, at the outset, that the Government should pay
Mrs Otychenko the outstanding judgment debt by way of
compensation for pecuniary damage. It further
dismisses the claim by Mrs Otychenko for inflation adjustment
as unsubstantiated (see, a
contrario, Maksimikha v.
Ukraine, no. 43483/02, § 29,
14 December 2006).
- The
Court further finds that the applicants must have suffered
non-pecuniary damage on account of the violations found. Ruling on an
equitable basis, it awards under this head Mrs Otychenko EUR 2,600
and Mrs Fedishchenko EUR 700.
B. Costs and expenses
- Mrs
Otychenko claimed 500 US Dollars for the costs and expenses she had
incurred during the national proceedings. She did not provide any
documents in support of this claim.
- The
Government contested this claim as unsubstantiated.
- The Court reiterates that, in order for costs and
expenses to be included in an award under Article 41, it must be
established that they were actually and necessarily incurred in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention and were reasonable as to quantum (see,
among many other authorities, Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII).
- The
Court considers that these requirements have not been met in the
instant case. In particular, it notes that the claim by Mrs Otychenko
is neither substantiated nor contains any details about its
components. Accordingly, it 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 applications admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention,
(i) the
outstanding debt under the judgment of 16 December 2002 given in
favour of Mrs Otychenko;
(ii) EUR
2,600 (two thousands six hundred euros) to Mrs Otychenko and EUR
700 (seven hundred euros) to Mrs Fedishchenko 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
to the applicants;
(b) 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 12 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
