FIFTH SECTION

CASE OF SHULGA v. UKRAINE

(Application no. 16652/04)

JUDGMENT

STRASBOURG

2 December 2010

This judgment is final but it may be subject to editorial revision.

In the case of Shulga v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mark Villiger, President,
	Isabelle Berro-Lefèvre,
	Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 9 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 16652/04) 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 Anna Ivanovna Shulga (“the applicant”), on 7 April 2004.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  On 2 March 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1942 and lives in the village of Volodarske, Donetsk Region, Ukraine.
A.  First set of proceedings
5.  On 24 February 1998 the Novogrod Court ordered the State mine, “Rossiya”, to pay the applicant’s husband 2,000 Ukrainian hryvnias (UAH, about USD 1,000) in compensation for non-pecuniary damage caused to him as a result of a work-related accident. On 12 March 1998 the court sent the enforcement writ in respect of that judgment to the State Bailiffs’ Service. Later, the applicant and her husband appealed against that judgment under the extraordinary procedure. However, their efforts were unsuccessful.
6.  The applicant’s husband died on 14 January 2003. According to the applicant’s submissions, her daughter received the award under the judgment on an unspecified date in 2003 and then transferred the money to the applicant. In 2006 the applicant lodged several requests with the Bailiffs’ Service and the Novogorod Court requesting information about the enforcement proceedings. However, her efforts were unsuccessful. In their observations, the Government provided no information about the date of the enforcement of the judgment in question either.
B.  Second set of proceedings
7.  In November 2003 the applicant instituted proceedings against the Novogrod Department of the State Pension Fund in the Novogrod Court, seeking recalculation of her pension. On 29 March 2004 the court found against the applicant. On 10 June 2004 the Donetsk Regional Court of Appeal upheld this judgment. In July 2004 the applicant lodged an appeal in cassation. On 19 October 2006 the Higher Administrative Court upheld the decisions of the lower courts.
C.  Third set of proceedings
8.  On 10 November 2003 the applicant instituted proceedings against the State Insurance Fund for Work-Related Accidents and Diseases in the Novogrod Court, alleging that her husband had died as a result of a work-related disease. She claimed compensation for the damage caused to her as a result of her husband’s death. On 27 October 2004 the court found against the applicant. On 24 January 2005 the Donetsk Regional Court of Appeal upheld this judgment. The applicant lodged an appeal in cassation on 23 February 2005. On 4 May 2007 the Supreme Court sent the applicant’s appeal in cassation to the Kyiv City Court of Appeal for consideration. On 30 October 2007 the latter, acting in its cassation jurisdiction, upheld the decisions of the lower courts.
II.  RELEVANT DOMESTIC LAW
9.  The relevant domestic law concerning the enforcement of the judgments is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
10.  On 22 February 2007 the Law on Amendments to the Judicial System of Ukraine was enacted. The amendments provided, inter alia, that cassation appeals in civil cases pending before the Supreme Court on 1 January 2007, were to be transferred for consideration to the panel of judges of the respective courts of appeal.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1
11.  The applicant complained about the non-enforcement of the judgment given in her husband’s favour. She relied on Article 1 of Protocol No. 1 to the Convention, which provides as follows:
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
12.  The Government submitted that the applicant’s complaint under Article 1 of Protocol No. 1 should be declared inadmissible since no complaint about non-enforcement had been raised under Article 6 § 1 of the Convention. They also maintained that neither the applicant nor her husband had submitted the enforcement writ to the State Bailiffs’ Service.
13.  The applicant disagreed.
14.   Referring to its case-law, the Court notes that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and Jasiÿnienÿ v. Lithuania, no. 41510/98, § 45, 6 March 2003). As regards the Government’s objection that the applicant had failed to resubmit the enforcement writ, the Court notes that in the instant case the applicant’s husband had obtained a final and enforceable judgment against the State mine. The Court further reiterates that it is inappropriate to require an individual who has obtained a judgment against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction (see Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007 and the case-law referred to therein). Therefore, the Court dismisses the Government’s objections.
15.  The Court notes that the applicant’s complaint 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
16.  The Government made no observations on the merits of the complaint.
17.  The applicant maintained her complaint.
18.  The Court observes that, according to the applicant’s statement, the judgment of 24 February 1998 was enforced only in 2003.
19.  The Court has frequently found violations of Article 1 of Protocol No. 1 to the Convention in cases raising similar issues to the ones in the present case (see Lopatyuk and Others v. Ukraine, nos. 903/05 and foll., § 22, 17 January 2008).
20.  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.
21.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22.  The applicant complained that the length of the third set of the proceedings had been incompatible with the “reasonable time” requirement, laid down in 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
23.  The Court notes that this complaint 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
24.  The Government contested the applicant’s complaint. In particular, they maintained that the lengthy consideration of the applicant’s cassation appeal was caused as a result of the Supreme Court being overloaded. They further submitted that the Law of 22 February 2007 had been enacted in order to resolve that problem.
25.  The applicant disagreed.
26.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
27.  The period to be taken into consideration in the present case began on 10 November 2003 and ended on 30 October 2007. The proceedings thus lasted almost four years at three levels of jurisdiction.
28.  The Court notes that the major delay in the proceedings at issue was caused as a result of the applicant’s appeal in cassation not being considered in good time. The Court reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective. However, in the Court’s opinion the national courts did not act with due diligence.
29.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, mutatis mutandis, Doğru Avşar v. Turkey, no. 14310/05, § 8, 12 January 2010 and Frydlender, § 46, cited above).
30.  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. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
31.  The applicant complained under Article 6 § 1 of the Convention of the unfairness and length of the proceedings. In particular, she alleged that the judges sitting in her and her husband’s cases lacked impartiality and had not been independent. She further complained under Article 6 § 1 of the lengthy non-execution of the judgment given in her husband’s favour. Relying on Article 1 of Protocol No. 1, she complained about the outcome of the proceedings in her and her husband’s cases. Lastly, she invoked Articles 13 and 14 of the Convention referring to the facts of the case.
32.  The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
A.  Damage
33.  The applicant claimed 7,196 euros (EUR) in compensation for pecuniary damage and EUR 4,000 in respect of non-pecuniary damage sustained by her.
34.   The Government contested these claims.
35.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
36.  The Court further takes the view that the applicant has suffered non-pecuniary damage. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her EUR 2,000 in that respect.
B.  Costs and expenses
37.  The applicant claimed EUR 80 for costs and expenses. However, she produced postal receipts for mailing correspondence to the Court amounting to UAH 223 (about EUR 23).
38.  The Government left the matter to the Court’s discretion.
39.  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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 23 under this head.
C.  Default interest
40.  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.  Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the third set of proceedings and the complaint under Article 1 of Protocol No. 1 of the lengthy non-enforcement of the judgment admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the third set of proceedings;

3.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, as well as EUR 23 (twenty-three euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement;
(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mark Villiger
	Deputy Registrar	President