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RUKAS v. UKRAINE - 15879/06 [2009] ECHR 1557 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1557.html
Cite as:
[2009] ECHR 1557
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FIFTH
SECTION
CASE OF RUKAS v. UKRAINE
(Application
no. 15879/06)
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 Rukas v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, 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. 15879/06) 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 Tamara Vasilyevna
Rukas (“the applicant”), on 3 April 2006.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
20 May 2008 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1950 and lives in the town of Armyansk,
Ukraine.
On
6 November 2003 the Armyansk Court awarded the applicant 1,399.61
Ukrainian hryvnas (UAH) in salary arrears, to be paid by her former
employer, the State company Sivashsky Anilinokrasochniy zavod (“the
company”). On an unspecified date the judgment was enforced in
full.
On
20 February 2004 the same court awarded the applicant UAH 2,206.56
in compensation for the pecuniary and non-pecuniary damage caused by
the delay in payment of the salary. The judgment became final. On
24 March 2004 the State Bailiffs' Service instituted enforcement
proceedings.
On
10 October 2006 the company was declared insolvent. The liquidation
proceedings instituted against the company are still pending.
The
judgment of 20 February 2004 has not been enforced due to the
company's lack of funds.
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
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicant complained about the State authorities' failure to enforce
the judgment of 20 February 2004. She relied on Article 1 of
Protocol No. 1, which provides, in so far as relevant, as
follows:
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....”
A. Admissibility
The Government submitted that
the applicant had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. In particular,
they maintained that she had not availed herself of the opportunity
to be registered as a creditor in the insolvency proceedings, and had
failed to challenge the liquidation commission's inactivity before
the relevant commercial court.
The applicant disagreed.
13. The
Court notes that similar objections have already been rejected in a
number of judgments adopted by the Court (see Sokur
v. Ukraine
(dec.), no. 29439/02, 16 December 2003; Sychev
v. Ukraine,
no. 4773/02, §§ 42 46, 11 October 2005;
and Trykhlib
v. Ukraine,
no. 58312/00, §§ 38 43, 20 September 2005).
The Court considers that these objections must be rejected in the
instant case for the same reasons.
14. The
Court notes that the complaint 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.
B. Merits
In
their observations on the merits the Government advanced the
arguments they have frequently put forward in cases like the present
one (see, for example, the Romashov judgment, cited above,
§ 37).
The
applicant disagreed.
The
Court has frequently found violations of Article 1 of Protocol No. 1
to the Convention in cases raising similar issues to those in the
present case (see Voytenko v. Ukraine, no. 18966/02, §
55, 29 June 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 1 of Protocol
No. 1 to the Convention.
II. NON-ENFORCEMENT OF THE JUDGMENT OF 6 NOVEMBER 2003
Lastly,
the applicant complained under Article 1 of Protocol No. 1 about the
lengthy non-enforcement of the judgment of 6 November 2003. She
submitted that the judgment had been enforced, but did not provide
any information about the date of its enforcement.
Having regard to all the material in its possession,
and in so far as this complaint falls within its competence, the
Court finds that it does not disclose any appearance of a violation
of Article 1 of Protocol No. 1 of the Convention. It follows that
this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 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 payment of the outstanding debt
under the judgment of 20 February 2004. She
also asked that the judgment debt be indexed to the rate of
inflation, though she did not indicate the sums in question.
She further claimed 2,000 euros (EUR) in
respect of non-pecuniary damage.
The
Government agreed to pay her the outstanding debt and contested the
remainder of her claims.
The Court finds that the
Government should pay the applicant the outstanding debt under the
judgment of 20 February 2004 by way of compensation for pecuniary
damage. It further dismisses the claim for inflation adjustment as
unsubstantiated (see, a contrario,
Maksimikha v. Ukraine,
no. 43483/02, § 29, 14 December 2006). The
Court further takes the view that the applicant must have sustained
non-pecuniary damage as a result of the violation found. Making its
assessment on an equitable basis, as required by Article 41 of
the Convention, it awards the applicant EUR 1,800 under this
head.
B. Costs and expenses
The
applicant lodged no claim in that connection; the Court, therefore,
makes no award under this head.
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 of 20 February 2004 admissible and
her complaint about the non-enforcement of the judgment of 6 November
2003 inadmissible;
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 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 following
sums:
(i) the
outstanding debt under the judgment of 20 February 2004 in respect of
pecuniary damage;
(ii) EUR
1,800 (one thousand eight 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 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 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
