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RUDENKO v. UKRAINE - 19441/03 [2007] ECHR 590 (12 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/590.html
Cite as:
[2007] ECHR 590
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FIFTH
SECTION
CASE OF RUDENKO v. UKRAINE
(Application
no. 19441/03)
JUDGMENT
STRASBOURG
12 July
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 Rudenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 19 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19441/03) 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, Mr Vladimir and Mrs
Valentina Rudenko (“the applicants”), on 14 March 2003.
The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
On
30 May 2006 the Court decided to communicate the complaints
concerning non-enforcement of judgments 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
applicants, husband and wife, live in Dniprodzerzhynsk.
In August 2000 the applicants instituted civil proceedings in the
Zavodsky District Court of Dniprodzerzhynsk (Заводський
районний
суд м. Дніпродзержинська)
against their employer, the municipally owned Public Transportation
Company (“the PTC”; Комунальне
експлуатаційне
підприємство
“Дніпродзержинськміськелектротранс”)
for salary arrears and compensation for a delay in the payment
of salary.
On
31 August 2000 the
court awarded
4,004.55 hryvnyas (UAH)
to the first and UAH 3,323
to the second applicant in salary arrears and compensation.
Subsequently
the applicants lodged similar claims and on 4 April 2001
the court additionally awarded UAH 2,511.83
to the first and UAH 1,539.94
to the second applicant in salary arrears and compensation.
The
judgments became final and the enforcement writs were transferred to
the Zavodsky District Bailiffs' Service (“the Bailiffs”;
Відділ
Державної
виконавчої
служби
Заводського
районного
управління
юстиції в
м. Дніпродзержинську)
for enforcement.
On
29 October 2001 the Bailiffs informed the applicants that
the PTC lacked funds and that no buyers were interested in acquiring
its assets.
In
January 2002 the Bailiffs proposed that the PTC's property
(trams, technical equipment and an administrative building) be
transferred to the creditors.
Having
received no positive response from the applicants, on 26 June 2002
the Bailiffs returned the enforcement writs to them unenforced.
On
17 June 2003 the Dnipropetrovsk Commercial Court
(Господарський
суд Дніпропетровської
області) declared
the PTC bankrupt and ordered its liquidation.
The
PTC paid the salary arrears due to the applicants in several
instalments. However, the compensations for a delay in the payment of
salary awarded by all four judgments in the amounts of UAH 639.38
in favour of the first and UAH 673.94
in favour of the second applicant remain outstanding.
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. THE LENGTHY
NON-ENFORCEMENT OF JUDGMENTS
The
applicants complained about the State authorities' failure to enforce
the judgments of the Zavodsky District Court of Dniprodzerzhynsk
given in their favour. They invoked Articles 6 § 1 and
13 of the Convention and Article 1 of Protocol No. 1,
which provide, insofar 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 13
“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.”
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
The
Government raised objections, contested by the applicants, regarding
the applicants' victim status and exhaustion of domestic remedies
similar to those already dismissed in a number of the Court's
judgments regarding non-enforcement of judgments against the
State-owned companies (see e.g. among many others, Romashov
v. Ukraine, no. 67534/01, §§ 23-27, 27
July 2004 and Mykhaylenky and Others v. Ukraine,
nos. 35091/02 and following, §§ 38-40,
ECHR 2004-XII). The Court considers that these objections must be
rejected for the same reasons.
The
Court concludes that these complaints raise issues of fact and law
under the Convention, the determination of which requires an
examination on the merits. The Court finds no ground for declaring
them inadmissible. The Court must therefore declare them admissible.
The
applicants also relied on the European Social Charter, which is,
however, outside the Court's competence (Kucherenko v.
Ukraine, no. 27347/02, § 28, 15 December 2005).
B. Merits
In
their observations on the merits of the applicants' case, the
Government contended that there had been no violation of the
applicants' Convention rights.
The
applicants disagreed.
The
Court notes that the delay in the enforcement has exceeded six years
and eleven months in respect of the judgments of 31 August 2000
and six years and two months in respect of the judgments of
4 April 2001.
The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in a number of similar cases, including the case concerning the same
municipally-owned debtor - the PTC (see, Kucherenko v.
Ukraine, cited above, § 27).
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 Article 6 § 1
of the Convention and Article 1 of Protocol No. 1.
The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1.
II. 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 the unsettled judgments debts and 3,000 euros
(EUR) each in respect of pecuniary and non-pecuniary damage.
The
Government submitted that these claims were unsubstantiated.
The
Court notes that, as the judgments given in favour of the applicants
remain unenforced, the Government should pay the applicants the
outstanding debts in order to satisfy their claims for pecuniary
damage. The Court further takes the view that the applicants have
suffered some non-pecuniary damage as a result of the violations
found. Making its assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards each applicant
the sum of EUR 2,600 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicants did not submit any claim under this head. The Court
therefore makes no award.
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 complaints about the lengthy
non-enforcement of judgments admissible and the remainder of the
application inadmissible;
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;
Holds that there is no need to examine the
complaint under Article 13 of 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 in accordance with
Article 44 § 2 of the Convention, the unsettled
debts still owed to them, as well as the sum of EUR 2,600 (two
thousand six hundred euros) to each applicant 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;
(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' claim
for just satisfaction.
Done in English, and notified in writing on 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
