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NAPALKOVA v. UKRAINE - 316/04 [2007] ECHR 595 (12 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/595.html
Cite as:
[2007] ECHR 595
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FIFTH
SECTION
CASE OF NAPALKOVA v. UKRAINE
(Application
no. 316/04)
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 Napalkova 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. 316/04) 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 Yevgeniya Vasilyevna Napalkova (“the
applicant”), on 6 November 2003.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
On
15 March 2005 the Court decided to communicate the complaint
concerning the non-enforcement of the judgment in the applicant's
favour 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 was born in 1953 and lives in the town of Yuzhne, Odessa
region.
In
February 2002 the applicant instituted proceedings against the
Ministry of Education and Science (hereinafter “the Ministry”)
alleging that she had won in the “Best School Textbook”
competition organised by the Ministry. However, the prize had not
been paid to her. The applicant claimed material and moral damages.
On
20 May 2002 the Shevchenkivsky District Court of Kyiv allowed the
applicant's claim and ordered the Ministry to pay her UAH 2,015.34.
On
2 December 2002 the Shevchenkivsky District Bailiffs' Service
(hereinafter “the Bailiffs”) instituted the enforcement
proceedings.
As
the Ministry failed to execute the judgment, the Bailiffs sent the
writ of execution and payment order to the State Treasury. However,
the payment order and the writ were returned to the Bailiffs without
execution due to the lack of funds on the Ministry's accounts.
On
11 October 2002 the Bailiffs ordered the attachment of the Ministry's
accounts. However, the State Treasury refused to execute this order
referring to internal instructions prohibiting such actions.
In
their submissions of 13 June 2005 the Government stated that during
2004-2005 the Bailiffs with their letters on several occasions
informed the applicant that the amount due was allocated and that in
order to receive payment she had to provide information concerning
her bank account.
The
applicant informed the Court that she had provided the Bailiffs with
the information required.
To
date, the amount due to the applicant under the judgment of 20 May
2002 was not paid.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-19).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
Relying
on Articles 6 § 1 and 13 of the Convention, the applicant
complained about the non-enforcement of the final judgment given in
her favour. These provisions read, 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.”
A. Admissibility
The
Government raised objections, contested by the applicant, similar to
those already dismissed in a number of the Court's judgments
regarding non-enforcement against the State institutions (see
Voytenko v. Ukraine, no. 18966/02, § 27-31,
29 June 2004 and Romashov v. Ukraine, cited above,
§§ 28-32). The Court considers that these objections
must be rejected for the same reasons.
The
Court concludes that the applicant's complaints under Articles 6 § 1
and 13 of the Convention raise issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring these complaints
inadmissible. The Court must therefore declare them admissible.
B. Merits
In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in the applicant's
respect. In particular, they submitted that the debt under the
judgment of 20 May 2002 was not paid to the applicant due
to her failure to provide the Bailiffs with the information
concerning her bank account.
The
applicant disagreed. She maintained that in 2002 she had provided the
Bailiffs with the information required and later on resubmitted it
following the respective Bailiff's requests. She further outlined
inaccuracies in the copies of the documents concerning the
enforcement proceedings provided by the Government together with
their observations.
The
Court notes that the final court decision given in the applicant's
favour remains unenforced for five years and one month.
The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see Romashov,
cited above, §§ 42-46 and Voytenko v. Ukraine,
cited above, §§ 53-55).
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.
The
Court does not find it necessary in the circumstances to examine the
same complaints under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained about the alleged breach of Article 14 of
the Convention caused by the non-enforcement of the judgment given in
her favour.
However,
in the light of all the materials in its possession, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 of the Convention.
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 EUR 10,000 in respect of pecuniary and
non-pecuniary damage.
The
Government found the applicant's claims excessive and unjustified.
In
so far as the judgment's debt in the applicant's favour has not
been paid (paragraph 6 above), the Court notes that the State's
outstanding obligation to enforce this judgment is not in dispute.
Accordingly, the Court considers that, if the Government were to pay
the remaining debt owed to the applicant, it would constitute full
and final settlement of the case.
As regards the remainder of the applicant's claims for
pecuniary and non-pecuniary damage, the Court, making its assessment
on equitable basis, as required by Article 41 of the Convention,
considers it reasonable to award the applicant EUR 1,600 in
respect of her non-pecuniary damage.
B. Costs and expenses
The applicants did not submit any separate 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 complaint concerning the
non-enforcement of the judgment in the applicant's favour 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 is no need to examine the
complaint under Article 13 of the Convention;
Holds
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the unsettled
debt still owed to her, as well as EUR 1,600 (one thousand and six
hundred euros) 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 amount 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
claims 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
