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SERGEYEVA v. UKRAINE - 43798/05 [2009] ECHR 2041 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2041.html
Cite as:
[2009] ECHR 2041
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FIFTH
SECTION
CASE OF SERGEYEVA v. UKRAINE
(Application
no. 43798/05)
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 Sergeyeva 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 an application (no. 43798/05) 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 Nataliya Oleksiyivna
Sergeyeva (“the applicant”), on 15 November 2005.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
The
applicant alleged, in particular, that her Convention rights had been
infringed on account of lengthy enforcement of a judgment given in
her favour.
On
20 January 2009 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 1946 and lives in Kyiv.
On
28 January 2004 the Shevchenkivskiy District Court of Kyiv obliged
the Shevchenkivskiy District Administration of Kyiv to regularise
privatisation of the apartment, which the applicant occupied with her
family.
On
13 May 2004 this judgment was upheld by the Kyiv City Court of Appeal
and on 27 July 2004 the bailiff service instituted enforcement
proceedings in its respect.
On
9 December 2004 the judgment was further upheld by the Supreme Court
of Ukraine and became final.
On
several occasions the enforcement proceedings were suspended on
account of various objections and requests for clarification by the
debtor. On 17 and 23 February 2005 the bailiffs’ service
imposed fines on the Head of the Administration on account of his
failure to ensure enforcement of the judgment. In March 2005 the
bailiffs’ service further requested the prosecutors’
office to institute criminal proceedings against him on account of
evasion of enforcement, which request on 14 March 2005 was rejected.
On
15 April 2005 the Shevchenkivskiy District Administration issued the
applicant and her family with a privatisation certificate and the
enforcement proceedings were discontinued. However, in view of the
fact that the State Real Estate Inventory Bureau (Бюро
технічної
інвентаризації)
refused to register the applicant’s family’s title
to the apartment on the basis that the
title documents issued to another party, a municipal company, had not
been invalidated, the enforcement proceedings were subsequently
renewed.
On
6 December 2005 the bailiffs’ service imposed a fine on the
debtor for non-enforcement of the judgment in the applicant’s
family’s favour.
On
19 December 2005 the Shevchenkivskiy District Administration
instituted court proceedings seeking invalidation of the municipal
company’s title to the apartment and the enforcement
proceedings in the applicant’s favour were suspended.
On
2 June 2006 the Shevchenkivskiy District Court of Kyiv invalidated
the municipal company’s title to the apartment.
On
20 November 2006 the Real Estate Inventory Bureau registered the
applicant’s family’s title to the apartment and on 8
December 2006 the enforcement proceedings were terminated.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the domestic law are cited
in the judgment of Romashov v. Ukraine (no. 67534/01,
§§ 16-19, 27 July 2004) and the admissibility
decision in the case of Skubenko v. Ukraine
(no. 41152/98, 6 April 2004).
THE LAW
I. SCOPE OF THE CASE
The
Court notes that after the case had been communicated to the
respondent Government the applicant introduced a new complaint under
Article 13 of the Convention that she had been deprived of effective
domestic remedies on account of her complaints concerning
non-enforcement of the judgment of 28 January 2004.
In
the Court’s view, the new complaint is not an elaboration of
the applicant’s original complaints to the Court, lodged more
than three years earlier and which had been communicated to the
respondent Government. The Court considers, therefore, that it is not
appropriate to consider it now (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. ADMISSIBILITY
The
applicant complained that the State authorities had failed to enforce
the judgment of 28 January 2004 in due time. She invoked
Article 6 § 1 of the Convention and Article 1
of Protocol No. 1, which provide, in so far 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 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.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest ....”
The
Government submitted that these complaints were inadmissible. They
noted in particular that as the judgment at issue had finally been
enforced on 20 November 2006, the applicant had lost her victim
status, and so her application was incompatible ratione personae
with the provisions of the Convention. Moreover, this application
constituted abuse of right of petition, as the applicant had not
informed the Court in her submissions that the judgment had been
finally enforced. In any case, the applicant had failed to exhaust
domestic remedies in respect of her complaints, as she had not
pursued proceedings against the bailiffs for failure to enforce the
judgment in due time.
The
applicant disagreed.
The
Court notes that it had already examined and rejected in other cases
allegations similar to those advanced by the Government in the
present case (see Skubenko (dec.), cited above, and Khaylo
v. Ukraine, no. 39964/02, § 73, 13 November
2008). It finds no reasons to depart from its findings in the present
case and rejects the Government’s objections on the same
grounds.
The
Court considers that the application 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.
III. MERITS
In
its observations on the merits, the applicant contended that her
Convention rights had been breached on account of the lengthy
non-enforcement of the judgment of 28 January 2004.
The
Government disagreed. They emphasised that the judgment at issue had
been executed in full. There was, therefore, no breach of her
Convention rights.
The
Court reiterates that the aforesaid judgment, which became binding
for enforcement on 13 May 2004, remained unenforced for two
and a half years. It finds that the Government have not advanced any
convincing justification for this delay.
The
Court, having regard to its extensive case-law on the matter of
non-enforcement (see, for example, Skubenko, cited above,
§§ 37-38; Zaichenko v. Ukraine, no.
29875/02, §§ 30-31, 22 November 2007; and Bitkivska
v. Ukraine, no. 5788/02, § 35, 4 October 2005) finds a
violation of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 on account of the unreasonable
length of the enforcement of the judgment in the applicant’s
case.
IV. 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 a global sum of 40,000 euros (EUR) in respect of
damage.
The
Government submitted that this claim was exorbitant and
unsubstantiated.
Having
regard to the circumstances of the case and making its assessment on
an equitable basis, as required by Article 41 of the Convention,
the Court awards the applicant EUR 600 in respect of
non pecuniary damage.
B. Costs and expenses
The applicant did not submit any separate claim under
this head; the Court therefore makes no award in this respect.
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 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 applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 600
(six hundred euros), plus any tax that may be chargeable, to be
converted into the National currency of Ukraine at the rate
applicable at the date of settlement;
(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
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
