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RAMUS AND OTHERS v. UKRAINE - 11867/08 [2009] ECHR 2034 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2034.html
Cite as:
[2009] ECHR 2034
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FIFTH
SECTION
CASE OF
RAMUS AND OTHERS v. UKRAINE
(Application
nos. 11867/08, 11868/08, 28969/08, 28971/08, 28979/08 and 37484/08)
JUDGMENT
STRASBOURG
10 December 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 Ramus and others 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,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in six applications (nos. 11867/08, 11868/08,
28969/08, 28971/08, 28979/08 and 37484/08) against Ukraine lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by six Ukrainian nationals, Ms Taisa Nikolayevna Ramus (“first
applicant”), Ms Nadezhda Vladimirovna Gritsenko (“second
applicant”), Ms Nina Sergeyevna Klimenkova (“third
applicant”), Ms Anna Nikolayevna Akimenko (“fourth
applicant”), Ms Tamara Eduardovna Didenko (“fifth
applicant”) and Mr Sergey Aleksandrovich Mikhaylov (“sixth
applicant”) (together referred to as “the applicants”),
on 21 February 2008 (application nos. 11867/08 and 11868/08), 7 June
2008 (application nos. 28969/08, 28971/08, 28979/08) and 23 July 2008
(application no. 37484/08).
The
sixth applicant had no representative. All the other applicants were
represented by Mr Vladislav Bychkovskiy, a lawyer practising in
Miusynsk. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Yuriy Zaytsev.
On
20 November 2008 the President of the Fifth Section decided to give
notice of the applications to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are Ukrainian nationals who live in
Luhansk Region.
On
various dates the Krasnyy Luch Court awarded the applicants the
following sums in compensation for salary arrears to be paid by the
State Open Joint Stock Company “Yanivska” Factory of the
State Holding Company “Donbasantratsyt” (Державне
відкрите акціонерне
товариство
Центральна
збагачувальна
фабрика «Янівська»
Державної
холдингової
компанії
«Донбасантрацит»):
first
applicant - 1,462.47 Ukrainian hryvnias
(UAH) by the judgment of 21 June 2002 and UAH 353.69
and 540.53
by two separate judgments of 11 August 2005;
second
applicant – UAH 2,906.27
by the judgment of 1 June 2005;
third
applicant – UAH 4,426.51
by the judgment of 8 July 2005;
fourth
applicant – UAH 4,948.23
by the judgment of 11 May 2005;
fifth
applicant – UAH 3,992.99
by the judgment of 17 December 2003 and 1,415.54
by the judgment of 31 August 2005;
sixth
applicant - UAH 5,556
by the judgment of 1 February 2007 and UAH 3,940
by the judgment of 21 June 2007.
All
the judgments became final but remain unenforced owing to the
debtor’s lack of funds.
On
20 March 2007 the Ministry of Coal Industry of Ukraine ordered
liquidation of the debtor“Yanivska” Factory.
II. RELEVANT DOMESTIC LAW
The relevant domestic law is summarised in the judgment
of Sokur v. Ukraine (no. 29439/02, § 17-22,
26 April 2005).
THE LAW
I. JOINDER OF THE APPLICATIONS
The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common factual
and legal background.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicants complained about the non-enforcement of the judgments in
their favour. They relied on Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention, which, in so far as
relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
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 first and the fifth applicants had
failed to institute enforcement proceedings in respect of the
judgments given in their favour and had therefore not exhausted all
the remedies available to them under the Ukrainian law.
The
applicants disagreed.
The Court finds that it is inappropriate to require an
individual who has obtained judgment against the State at the end of
legal proceedings to then bring enforcement proceedings to
obtain satisfaction (see, for example, Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 198, ECHR 2006 V; and
Lizanets v. Ukraine, no. 6725/03, § 43,
31 May 2007). It therefore rejects the Government’s
objection.
The Court notes that the applicants’ complaints
are not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It further notes that they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
The
Government maintained that there had been no breach of any of the
provisions of the Convention as the applicants’ right to have
the judgments in their favour enforced has never been contested and
the State authorities had taken all necessary measures to enforce the
judgments in question.
The
applicants disagreed.
The
Court observes that it frequently found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in cases raising
similar issues to the present applications (see, among many other
authorities, Sokur v. Ukraine, § 37, cited
above; and Anatskiy v. Ukraine, no. 10558/03, § 23,
13 December 2005) and that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present cases.
There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and 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
applicants claimed the judgments debts due to them and the following
amounts in respect of pecuniary losses, in particular, inflation
losses and in certain cases 3%-rate exemplary damages, and
non-pecuniary damage, respectively:
first applicant -
UAH 3,041.47 and 163,490.8;
second applicant -
UAH 2,548.74 and 77,108.38;
third applicant -
UAH 3,825.49 and 90,010;
fourth applicant -
UAH 4,366.86 and 98,575.45;
fifth applicant -
UAH 6,219.75 and 175,141.39;
sixth applicant -
UAH 4,620 and EUR 3,000.
The
Government did not question the applicants’
right to have the judgments in their favour enforced and contested
the remainder of the applicants’ just satisfaction claims. In
particular, they maintained that the applicants could have claimed
compensation for inflation losses at the domestic level.
The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the judgments given in the
applicants’ favour.
The
Court further observes with regard to the claim for inflation losses
that the applicants were not required to pursue the litigation
suggested by the Government (see, for example, Romanchenko
v. Ukraine, no. 5596/03, § 30, 22 November 2005;
Glova and Bregin v. Ukraine,
nos. 4292/04 and 4347/04, § 29, 28 February 2006). It
further notes that the applicants submitted detailed calculations of
the inflation losses. Taking into account the amounts awarded to the
applicants, the periods within which the respondent State failed to
enforce the judgments in the applicants’ favour and the
inflation indexes issued by the State Statistics Committee of Ukraine
for the relevant periods, the Court makes the following awards in
respect of inflation losses:
first applicant -
EUR 250;
second applicant -
EUR 210;
third applicant -
EUR 320;
fourth applicant -
EUR 370;
fifth applicant -
EUR 520;
sixth applicant -
EUR 440.
As
regards the claims for exemplary damages based on the provisions of
the Ukrainian domestic law, the Court has declined on several
occasions to impose any form of punitive or exemplary damages (see,
for example, Akdivar and Others v. Turkey (Article 50),
1 April 1998, § 38, Reports of Judgments and Decisions
1998-II; Cable and Others v. the United Kingdom [GC]
nos. 24436/94 et seq., 18 February 1999, § 30; and
Orhan v. Turkey, no. 25656/94, § 448, 18 June 2002). It
therefore rejects these claims.
As
regards the claims for non-pecuniary damage, the Court notes that the
applicants must have sustained 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 therefore
makes the following awards in respect of non-pecuniary damage:
first applicant -
EUR 2,600;
second applicant -
EUR 1,400;
third applicant -
EUR 1,200;
fourth applicant -
EUR 1,400;
fifth applicant -
EUR 2,600;
sixth applicant -
EUR 800.
B. Costs and expenses
The
first, second, third, fourth and fifth applicants claimed EUR 100
each for the legal assistance provided to them by their
representative in the proceedings before the Court. The sixth
applicant claimed EUR 140 in respect of the costs and expenses
incurred in the domestic proceedings and before the Court.
The
Government contested these claims stating that the applicants
provided no relevant supporting documents in this respect.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 first, second,
third, fourth and fifth applicants had failed to submit any
supporting document or calculation in respect of the sums claimed. It
makes no award for costs and expenses to these applicants. The Court
further notes that the sixth applicant provided relevant supporting
documents to the amount of EUR 100. It therefore awards the sixth
applicant this amount.
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
1. Decides to join the
applications;
Dismisses the Government’s preliminary
objection and declares the applications 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 applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the outstanding
judgments debts and the following sums in respect of pecuniary and
non-pecuniary damage, respectively:
first applicant EUR
250 (two hundred and fifty euros) and 2,600 (two thousand six
hundred euros);
second applicant EUR
210 (two hundred and ten euros) and 1,400 (one thousand four hundred
euros);
third applicant EUR
320 (three hundred and twenty euros) and 1,200 (one thousand two
hundred euros);
fourth applicant EUR
370 (three hundred and seventy euros) and 1,400 (one thousand four
hundred euros);
fifth applicant EUR
520 (five hundred and twenty euros) and 2,600 (two thousand six
hundred euros);
sixth applicant EUR
440 (four hundred and forty euros) and 800 (eight hundred euros),
and
EUR 100 (one hundred euros) to sixth applicant for costs and
expenses, 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 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
