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OSOKIN AND OSOKINA v. UKRAINE - 8437/06 [2009] ECHR 2037 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2037.html
Cite as:
[2009] ECHR 2037
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FIFTH
SECTION
CASE OF OSOKIN AND OSOKINA v. UKRAINE
(Applications
nos. 8437/06 and 8470/06)
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 Osokin and Osokina
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,
Mirjana Lazarova Trajkovska,
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 that date:
PROCEDURE
The
case originated in two applications (nos. 8437/06 and 8470/06)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Andrey Aleksandrovich Osokin (“the first applicant”)
and Mrs Nina Nikiforovna Osokina (“the second applicant”),
on 10 February 2006.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
30 April 2008 the President of the Fifth Section decided to give
notice of the applications to the Government. It was also decided to
examine the merits of the applications at the same time as their
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant was born in 1976, the second in 1946. Both applicants
live in the town of Makeyevka, Ukraine.
The
applicants are former employees of the State company Shachta imeni
K.I. Pochenkova (“the company”).
The
applicants instituted proceedings against the company in the
Chervonogvardeysky District Court of Makeyevka (“the
first-instance court”) requesting it to recalculate the amount
of salary paid to them from January 1997 to October 2001 and
compensate them for losses sustained as a result of alleged
miscalculations made by the company. They also claimed compensation
for non-pecuniary damage. In their initial submissions the applicants
stated that they had instituted these proceedings in April 2002. In
their further submissions they alleged that they had instituted them
on 19 December 2001. However, according to the registration
stamp of the domestic court on the copies of their claims, those
claims were registered by the court on 28 March 2003. The applicants
did not provide any documents in support of their statement that
their claims had been lodged prior to that date.
By
two separate judgments of 4 April 2003, the court allowed their
claims and awarded the first applicant 2,075.99 Ukrainian hryvnias
(UAH)
and the second applicant UAH 2,301.46.
The
Chervonogvardeysky District Bailiffs’ Service of Makeyevka
initiated enforcement proceedings in respect of the judgments given
in the applicants’ favour.
On
an unspecified date the company was liquidated. In June 2003 the
applicants requested the court to change the debtor in enforcement
proceedings to another State company. By two separate rulings on 17
July 2003 the court allowed their requests and changed the debtor to
the State company Ukrvuglerestrukturizatsiya. On 16 and 20 October
2003 the Donetsk Regional Court of Appeal quashed the rulings of the
first-instance court and rejected the first and second applicant’s
requests, respectively. By two separate rulings of 4 and 5 October
2005 the Supreme Court upheld the rulings of the court of appeal
given in the first and second applicant’s cases.
Later,
the applicants lodged extraordinary appeals against the final
decisions given in their cases by the Supreme Court. However, their
appeals were unsuccessful.
On
3 June 2008 the State Bailiffs’ Service returned the
enforcement writs to the applicants and terminated the enforcement
proceedings. The judgments in the applicants’ favour
remain unenforced.
II. RELEVANT DOMESTIC LAW
12. The relevant domestic law is
summarised in the judgment of Romashov
v. Ukraine
(no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. JOINDER OF THE APPLICATIONS
Pursuant
to Rule 42 § 1 of the Rules of Court, the Court
decides to join the applications, given their common factual and
legal background.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT OF THE JUDGMENTS
The
applicants complained that the judgments given in their favour remain
unenforced. They relied on Article 6 § 1, which reads 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.”
A. Admissibility
The Government contended that the applicants had not
exhausted domestic remedies as they had not challenged the action
taken by the Bailiffs’ Service on 3 June 2008. They also
maintained that the applicants had failed to resubmit the enforcement
writs. They asserted in this regard that the applicants were no
longer interested in the enforcement of the judgments.
The
applicants disagreed.
The Court notes that similar objections have already
been rejected in a number of judgments adopted by the Court (see
Voytenko v. Ukraine, no. 18966/02, §§
28-31, 29 June 2004, and Lizanets v. Ukraine, no. 6725/03,
§ 43, 31 May 2007). The Court considers that these
objections must be rejected in the instant case for the same reasons.
The
Court concludes that the applicants’ complaint under
Article 6 § 1 of the Convention 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
The
Government made no observations on the merits of the applicants’
complaint.
The
applicants maintained their complaint.
The
Court observes that the judgments given in the applicants’
favour remain unenforced.
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising similar issues to the ones in the present
case (see Romashov, cited above, § 46).
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.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
The
applicants further complained under Article 6 § 1 of the
Convention about the length of the proceedings. In particular they
alleged that they had lodged their claims in December 2001 and that
there had been no procedural activity in the period prior to March
2003. They also noted the lengthy consideration by the Supreme Court
of their cassation appeals. The applicants relied on Article 6 § 1
of the Convention.
The
Court notes that, according to copies of the applicants’
claims, dated 19 December 2001, they were registered by the domestic
court on 28 March 2003. Even assuming that the claims were
lodged in December 2001, the Court finds that the length of the
judicial stage of the proceedings was not excessive. The Court
further notes that, notwithstanding that certain delays in the
judicial stage of the proceedings at issue might have taken place,
the most significant delays took place during the enforcement stage
of the proceedings. The Court notes that this complaint is linked to
the complaint about the non-enforcement examined above and must
therefore likewise be declared admissible. Having regard to the
finding relating to Article 6 § 1 (see paragraph 24
above), the Court considers that it is not necessary to examine
separately the issue of the length of the proceedings in the present
case (see Lukyanchenko v. Ukraine, no. 17327/02, § 34, 15
May 2008).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicants complained that the
Supreme Court had considered their cassation and extraordinary
appeals in their absence. They invoked
Article 13 of the Convention. Finally, the applicants invoked Article
4 § 1 of the Convention referring to the facts of the
case.
The
Court has examined the remainder of the applicants’ complaints
and considers that, in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols.
Accordingly, the Court rejects them as manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the
Convention.
V. 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
Both
applicants claimed the amounts of the unsettled debts, converted by
them into euros at the rate applicable on 17 October 2008. In
particular, the first applicant claimed EUR 309.85, the second
applicant EUR 343.50. In addition, they claimed the following
amounts:
- The
first applicant claimed EUR 231.46 in inflation losses and
EUR 9,458.69 for non-pecuniary damage;
- The
second applicant claimed EUR 256.60 in inflation losses and
EUR 9,399.90 for non-pecuniary damage;
The
Government contested these claims as excessive and unsubstantiated.
With respect to the claims for inflation losses they also disagreed
with the method of calculation and argued that these claims should be
rejected as there had been an effective domestic remedy available to
the applicants, which, in the Government’s view, they had
failed to make use of.
With
respect to the applicants’ claims in respect of pecuniary
damage, the Court finds that the Government should pay the applicants
the outstanding debts under the judgments given in their favour.
As to the claim for inflation losses, the Court notes
that the Government merely disagreed with the method of calculation;
they did not however deny the fact that the applicants had suffered
inflation losses and neither did they provide an alternative
calculation of losses at issue. It further notes that the applicants
were absolved from pursuing the litigation suggested by the
Government (see Glova and Bregin v. Ukraine,
nos. 4292/04 and 4347/04, § 29, 28 February 2006). The
Court notes that the applicants’ claims are supported by
detailed calculations based on official data on inflation rates (see,
for example, Maksimikha v. Ukraine, no. 43483/02,
§ 29, 14 December 2006). The Court finds it
reasonable to award the applicants the amounts claimed in inflation
losses, namely:
- the
first applicant - EUR 235 in inflation losses;
- the
second applicant - EUR 260 in inflation losses;
34. Finally,
the Court finds that the applicants must have suffered non-pecuniary
damage. Ruling on an equitable basis, as required by Article 41 of
the Convention, it awards EUR 2,000 to each applicant under this
head.
B. Costs and expenses
The
applicants lodged no claims for costs and expenses; therefore the
Court 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
Decides to join the applications;
Declares the complaints under Article 6 § 1
about the non-enforcement of the judgments and the length of the
proceedings admissible and the remainder of the complaints
inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the
non-enforcement of the judgments given in the applicants’
favour;
Holds that there is no need to examine the
complaint under Article 6 § 1 of the Convention about the length
of the proceedings;
Holds
(a) that
the respondent State is to pay to the applicants, 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 debts under the judgments of 4 April 2003 given in the
applicants’ favour;
(ii) the
following sums in respect of just satisfaction, plus any tax that may
be chargeable to the applicants:
- Mr Osokin – EUR 2,235 (two thousand two hundred and
thirty-five euros);
- Ms Osokina – EUR 2,260 (two thousand two hundred and sixty
euros);
(b) that
the above 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 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’
claims 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
