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SHASTIN AND SHASTINA v. UKRAINE - 12381/04 [2009] ECHR 2045 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2045.html
Cite as:
[2009] ECHR 2045
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FIFTH
SECTION
CASE OF SHASTIN AND SHASTINA v. UKRAINE
(Application
no. 12381/04)
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 Shastin and
Shastina 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,
Zdravka
Kalaydjieva, 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. 12381/04) 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, Ms Lyudmila
Yevgenyevna Shastina (“the first applicant”) and Mr Pyotr
Pavlovich Shastin (“the second applicant”), on
19 February 2004. On 2 April 2008 the second applicant died and
the first applicant expressed a wish to continue the proceedings on
behalf of the second applicant, her husband.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yu. Zaytsev.
On
15 October 2008 the President of the Fifth Section decided to
communicate to the Government the complaint under Article 6 § 1
of the Convention concerning the non-enforcement of final decisions
given in the applicants’ favour. 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
applicants were born in 1932. The first applicant lives in Slovyansk.
The second applicant lived in the same town before his death.
At
the material time the applicants worked at the State Soda Plant (ВАТ
«Содовий завод»).
On 24 October 1997 and 5 June 1998 the Slovyansk Town
Court awarded the first applicant 1,752.56 and 717.74 Ukrainian
hryvnias (UAH)
in salary arrears to be paid by the above-mentioned company.
On
24 October 1997 and 28 March 2001 the Slovyansk Town Court
awarded the second applicant UAH 940.84 and UAH 715.63
in salary arrears to be paid by the above-mentioned company.
These
decisions became final and the State Bailiffs’ Service
instituted proceedings to enforce them.
On
3 January 2001 the Donetsk Regional Arbitration Court (after
June 2001 the Donetsk Regional Commercial Court) instituted
insolvency proceedings against the debtor company. On 4 September
2003 the court, having declared the debtor insolvent, ordered its
liquidation, which is still pending.
The
decisions given in the applicants’ favour have not been
executed.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. AS TO THE LOCUS STANDI OF THE FIRST APPLICANT IN
RESPECT OF THE COMPLAINTS OF THE SECOND APPLICANT
The
second applicant died on 2 April 2008, while the case was pending
before the Court. It has not been disputed that the first applicant
(his wife) is entitled to pursue the application on his behalf and
the Court sees no reason to hold otherwise (see, among other
authorities, Benyaminson v. Ukraine, no. 31585/02, § 84,
26 July 2007, and Horváthová v. Slovakia, no.
74456/01, §§ 25-27, 17 May 2005). However, reference will
still be made to both applicants throughout the ensuing text.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
The
applicants complained that by failing to enforce the decisions given
in their favour the respondent State violated Article 6 § 1 of
the Convention which reads, 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. ...”
A. Admissibility
The Government submitted that
the applicants had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. In particular,
they maintained that the applicants had not availed themselves of the
opportunity to be registered as creditors in the insolvency and
liquidation proceedings against the debtor company, and had failed to
apply to any domestic court to challenge the allegedly inadequate
enforcement by the Bailiffs’ Service of the decisions in their
favour.
The
applicants disagreed.
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 the objections in the instant case must be rejected
for the same reasons.
The
Court notes that the 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 advanced their standard arguments
for cases concerning the lengthy non-enforcement of domestic court
decisions and concluded that there had been no violation of Article 6
§ 1 of the Convention.
The
applicants disagreed.
The
Court notes that the decisions in the applicants’ favour have
remained unenforced for more than eight years.
The
Court reiterates that it has already found violations of
Article 6 § 1 in similar cases (see, among other
authorities, Sokur v. Ukraine, no. 29439/02, §§ 30-37,
26 April 2005; Shmalko v. Ukraine, no. 60750/00, §§
55-57, 20 July 2004; and Voytenko v. Ukraine, no. 18966/02,
§§ 43, 48 and 55, 29 June 2004).
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 in respect of the lengthy non-enforcement of the
decisions in the applicants’ favour in the present application.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicants further complained that lengthy non-enforcement of
decisions in their favour amounted to violation of Articles 4 and 17
of the Convention.
Having
regard to all the material in its possession, the Court finds that
these complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
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.”
The
applicants did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award them any sum on
that account.
The
Court, however, notes that the State still has an outstanding
obligation to enforce the decisions at issue. Accordingly, the
applicants remain entitled to recover the principal amount of the
debts awarded to them in the course of the domestic proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 6 § 1
of the Convention concerning the lengthy non-enforcement of decisions
in the applicants’ favour admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention.
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
