(Application no. 22539/04)
14 December 2006
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 Lyakhovetskaya v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 20 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
8. On 6 December 1999 the Zhovtnevy Court ordered the Prosecutor to fill out the form. This judgment was not appealed against and became final on 16 December 1999.
9. On 14 January 2000 the Prosecutors' Office withheld the case-file from the Zhovtnevy Court to decide, in accordance with the powers vested in it by law at the material time, whether to lodge a protest against the judgment of 6 December 1999 in supervisory review proceedings.
10. On 6 October 2000, following the applicant's complaint about an unjustified lengthy withholding of the case-file, the Prosecutors' Office returned it to the Zhovtnevy Court.
11. On 23 October 2000 the Zhovtnevy Court issued a writ of execution and the Zhovtnevy District Bailiffs' Service of Odessa (“the Bailiffs,” Відділ Державної виконавчої служби Жовтневого районного управління юстиції м. Одеси) initiated enforcement proceedings in respect of the above judgment.
12. On 8 August 2001 the Bailiffs adjourned the enforcement proceedings on the ground that the Prosecutors' Office had lodged a cassation appeal against the judgment of 6 December 1999 with the Supreme Court, in accordance with the transitional provisions of the new law of 21 June 2001, amending the Code of Civil Procedure.
13. On 20 September 2001 the Supreme Court rejected the Prosecutors' Office's request for leave to appeal in cassation.
14. On 8 February 2002 the Prosecutors' Office instituted civil proceedings in the Suvorovsky District Court of Odessa (“the Suvorovsky Court,” Суворовський районний суд м. Одеси) against the applicant and the Expert Commission, alleging that the applicant's diabetes was not an occupational disease. On 8 April 2005 the Suvorovsky Court rejected the claims of the Prosecutors' Office. This judgment was not appealed against and became final in May 2005.
15. In the meantime, on 14 January 2004 the Bailiffs informed the applicant that the writ of execution in respect of the judgment of 6 December 1999 had been lost and advised her to request a duplicate from the Zhovtnevy Court. In 2005 the building of the Prosecutors' Office was set on fire and the documents concerning further course of the enforcement proceedings were lost again.
16. On 18 February 2006 the Bailiffs resumed the enforcement proceedings and on 9 March 2006 the Odessa Regional Prosecutor filled out the applicant's insurance form. On 13 March 2006 the enforcement proceedings were terminated as completed.
II. RELEVANT DOMESTIC LAW
A. The Constitution
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
B. Law of Ukraine “on the Prosecutors' Office”
“...Life and health of the employees of the Prosecutors' Office are subject to mandatory State insurance at the expense of the respective local budgets in the amount of a ten-year allowance payable [to the employee] in his last position.”
C. Cabinet of Ministers Regulation “On Approval of the Procedure and Terms of the State Mandatory Personal Insurance of the Employees of the Prosecutors' Office
D. Law of Ukraine “On the Enforcement Proceedings”
E. Code of Civil Procedure, 1963
F. Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure
Chapter II. Transitional Provisions
“1. This Law shall enter into force as from 29 June 2001.
5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed against within three months in accordance with the procedure for consideration of cassation appeals (to the Supreme Court of Ukraine).”
I. SCOPE OF THE CASE
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. ...”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
35. The applicant claimed pecuniary and non-pecuniary damage without specifying the exact amount.
36. The Government maintained that the applicant has not substantiated her claims.
37. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non-pecuniary damage, and awards her EUR 2,000 in this respect.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek President Peer Lorenzen