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GUSEYNOVA v. UKRAINE - 19175/05 [2007] ECHR 32 (11 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/32.html
Cite as:
[2007] ECHR 32
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FIFTH
SECTION
CASE OF GUSEYNOVA v. UKRAINE
(Application
no. 19175/05)
JUDGMENT
STRASBOURG
11
January 2007
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 Guseynova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 4 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19175/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mrs Valentina Stepanovna Guseynova, (“the
applicant)” on 16 May 2005.
2. The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.
On
5 December 2005 the Court decided to communicate the application 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, a Ukrainian national, was born in 1952 and lives in the
city of Zaporizhzhya, Ukraine.
In
1999 the applicant, a private entrepreneur, concluded a labour
contract with the Shevchenkivskiy District State Administration in
Zaporizhzhya.
As
the State Administration failed to pay the applicant under the
contract, in 2002 she instituted proceedings against it in the
Commercial Court of Zaporizhzhya Region, seeking recovery of
remuneration and compensation for delay in payment.
On
15 January 2003 the court awarded the applicant UAH 16,094.52
(Рішення
Господарського
суду Запоріжської
області). This
judgment was not appealed against and became final.
On 28 March 2003 the Shevchenkivskiy District Bailiffs'
Service (Відділ
Державної
виконавчої
служби Шевченківського
районого управління
юстиції м. Запоріжжя)
initiated enforcement proceedings. On 3 November 2004 the
Bailiffs' Service returned the writ of execution to the applicant on
the ground that no funds allowing enforcement of the judgment had
been found.
On
28 May 2003 and 30 December 2004 the applicant received UAH 6,000
and UAH 5,000,
respectively.
By
letters of 5 November and 6 December 2004 the Zaporizhzhya Regional
Department of Justice informed the applicant that
there were no funds in the debtor's bank accounts and that it was not
possible to dispose of the debtor's property because the debtor was a
governmental institution.
On
25 August 2005 the Commercial Court of Zaporizhzhya Region
repeatedly ordered the Bailiffs' Service to enforce the judgment in
the applicant's favour of 15 January 2003. On 20 August 2005 the
Bailiffs' Service refused to institute the enforcement proceedings
for lack of jurisdiction.
The
judgment in the applicant's favour remains partly unenforced.
II. RELEVANT DOMESTIC LAW
The relevant domestic law is summarised in the
judgment of Romashov v. Ukraine (no. 67534/01, §§
16-18, 27 July 2004).
THE LAW
The
applicant complained about the State authorities' failure to execute
the judgment of 15 January 2003 in due time. She alleged an
infringement of 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 ....”
I. ADMISSIBILITY
The
Government raised objections regarding the applicant's exhaustion of
domestic remedies similar to those which the Court has already
dismissed in a number of judgments (see, Nosal v. Ukraine,
no. 18378/03, §§ 33-35, 29 November 2005). The Court
considers that the present objections must be rejected for the same
reasons.
The
Court concludes that the applicant's complaint under Article 6 § 1
of the Convention about the non-enforcement of the judgment of 15
January 2003 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. For the same reasons, the applicant's complaint under
Article 1 of Protocol No. 1 cannot be declared
inadmissible.
II. MERITS
The Government contended that the applicant had failed
to re-submit the writ of execution and thus the State was not
responsible for non enforcement of the judgment. The Government
further maintained that the length of the enforcement proceedings was
not excessive, that the Bailiffs' Service performed all necessary
actions and that the applicant's entitlement to the award was not
disputed.
The
applicant disagreed. She submitted that there had been a substantial
delay in payment which had therefore deprived her of the actual
possession of her property.
The Court notes that the judgment in the applicant's
favour has not been enforced for three years and nine 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, Sokur v. Ukraine,
no. 29439/02, §§ 30-37, 26 April 2005; 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 and of
Article 1 of Protocol No. 1.
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 UAH 7,708.79,
including the amount of the judgment debt, in respect of pecuniary
damage caused by violation of Article 6 § 1 and Article 1 of
Protocol No.1, and EUR 7,000 in respect of non-pecuniary damage.
The
Government maintained that the applicant's claim had to be rejected
as unsubstantiated.
In
so far as the applicant claimed the amount awarded to her by the
judgment at issue, the Court considers that the Government should pay
her the outstanding judgment debt (see paragraphs 7 and 9). As to the
rest of the applicant's claim for pecuniary damage, the Court does
not discern any causal link between the violation found and the
pecuniary damage alleged; it therefore rejects this part of the
claim.
As
to the applicant's claim in respect of non-pecuniary damage –
EUR 7,000 - the Court considers this sum excessive. Making its
assessment on an equitable basis as required by Article 41 of the
Convention, the Court awards the applicant the sum of EUR 1,000
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 50 in costs and expenses. However she did
not submit any document in this respect.
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.
The
Court notes that the applicant did not submit any evidence of her
expenses. However, the applicant may have incurred some costs and
expenses in connection with her Convention proceedings. Regard being
had to the Court's case-law and the information in its possession,
the Court awards the amount she claimed (see, mutatis mutandis,
Romanchenko v. Ukraine, no. 5596/03, § 38,
22 November 2005).
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 application admissible;
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 to 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 judgment
debt still owed to her, as well as EUR 1,050 (one thousand and fifty
euros) in respect of non pecuniary damage, and 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, plus any tax that may be chargeable;
(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 11 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
