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KORNIYCHUK v. UKRAINE - 28808/07 [2009] ECHR 1552 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1552.html
Cite as:
[2009] ECHR 1552
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FIFTH
SECTION
CASE OF KORNIYCHUK v. UKRAINE
(Application
no. 28808/07)
JUDGMENT
STRASBOURG
15
October 2009
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 Korniychuk v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 28808/07) 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, Mrs Vira Oleksandrivna
Korniychuk (“the applicant”), on 26 May 2007.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
On
20 November 2008 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1953 and lives in Ovruch.
On
an unspecified date the applicant retired from the army.
On
10 September 2001 the Military Court of the Zhytomyr Garrison
awarded the applicant 1,946.20 Ukrainian hryvnias (UAH)
in compensation for her uniform to be paid by the Military Unit
A-4602. The judgment became final but remains unenforced due
to the debtor's lack of funds.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained about the lengthy non-enforcement of the
judgment of 10 September 2001. She alleged an infringement of
Article 6 § 1 of the Convention which provides,
in so far as relevant, as follows:
Article 6 § 1 of the Convention
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair
... hearing within a reasonable time by [a] ... tribunal ...”
A. Admissibility
The
Government submitted that Article 6 § 1 was not applicable in
the present case stating that the compensation awarded to the
applicant concerned her uniform which she was obliged to wear in the
exercise of public functions. In their view, the award was of a
public law nature and was not decisive for the applicant's private
law rights or obligations.
The
applicant disagreed.
The Court observes that the applicant's case concerned
the right to compensation and not, as the Government put it, a title
to the uniform. It also notes that the applicant had access to a
court under national law. Thus, the Court discerns no justification
for the exclusion from the guarantees of Article 6 of the applicant's
dispute (Vilho Eskelinen and Others v. Finland [GC], no.
63235/00, §§ 62-63, ECHR 2007 ...).
11. In
view of the foregoing, the Court concludes that the
application raises issues of fact and law under the Convention, the
determination of which requires an examination of the merits. It
finds no ground for declaring it inadmissible.
B. Merits
The
Court notes that the judgment of 10 September 2001 has remained
unenforced for about seven years and ten months.
The
Court reiterates that it has already found violations of
Article 6 § 1 of the Convention in a substantial
number of cases raising issues similar to the present application
(see, for example, Voytenko v. Ukraine, no.
18966/02, 29 June 2004, Bagriy and Krivanich v. Ukraine,
nos. 12023/04 and 12096/04, 9 November 2006, Pivnenko v. Ukraine,
no. 36369/04, 12 October 2006).
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.
Accordingly,
the Court finds that there has been a violation of Article 6 § 1
of the Convention.
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
applicant claimed the unpaid judgment debt due to her and EUR 3,000
in respect of non-pecuniary damage.
The
Government contested these claims.
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 debt in settlement of her pecuniary damage. As to
the remainder of the applicant's just satisfaction claims, the Court,
making its assessment on an equitable basis, as required by Article
41, awards the applicant EUR 2,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant did not submit any claims for costs and expenses;
therefore, the Court 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 application admissible;
Holds that there has been a violation of Article
6 § 1 of 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
outstanding judgment debt due to her;
EUR
2,000 (two thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(b) that
the latter amounts shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the latter 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 claim
for just satisfaction.
Done in English, and notified in writing on 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
