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ILCHYSHYN AND OTHERS v. UKRAINE - 8802/07 [2009] ECHR 2048 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2048.html
Cite as:
[2009] ECHR 2048
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FIFTH
SECTION
CASE OF
ILCHYSHYN AND OTHERS v. UKRAINE
(Application
nos. 8802/07, 8729/07, 8739/07, 8991/07, 8996/07, 9447/07 and
10058/07)
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 Ilchyshyn 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,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
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 the last mentioned
date:
PROCEDURE
The
case originated in seven applications (nos. 8802/07, 8729/07,
8739/07, 8991/07, 8996/07, 9447/07 and 10058/07) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by seven Ukrainian nationals, Ms Galyna
Mykhaylivna Ilchyshyn (first applicant), Ms Galyna Illyarivna Sosyak
(second applicant), Mr Roman Yaroslavovych Blyshchak (third
applicant), Mr Volodymyr Vasylyovych Buryy (fourth applicant), Ms
Nataliya Vasylivna Shevchenko (fifth applicant), Ms Svitlana
Bogdanivna Blyshchak (sixth applicant) and Ms Nina Petrivna Onyshchak
(seventh applicant) (together referred to as “the applicants”),
on 7 February 2007.
The
applicants were represented by Mr Andriy Sokolov. The Ukrainian
Government (“the Government”) were represented by their
Agent, Mr Yuriy Zaytsev.
On
8 September 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 applications at the same
time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are Ukrainian nationals residing in the
Lviv Region.
By
a judgment of 20 May 2004 the Drohobych Court awarded the fourth
applicant 774.33 Ukrainian hryvnias (UAH)
in compensation for various work-related payments and teachers’
benefits due to him under Article 57 §§ 1(8)
and 1(10) of the Education Act and legal costs to be paid by the
Drohobych State Department of Education.
By
separate judgments of 28 September 2004 the Drohobych Court awarded
the first applicant UAH 342.06,
the second applicant UAH 1,053.05,
the third applicant UAH 976.95,
the fifth applicant UAH 1,355.50,
the sixth applicant UAH 456.64,
and the seventh applicant UAH 543.50
in compensation for similar payments and teachers’ benefits as
above.
The
judgments became final and enforceable. Parts of the judgment debts
were paid to the first, third, fourth, fifth, sixth and seventh
applicants during 2006. The judgments were enforced in full on 2
October 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice are summarised in the judgments of
Piven v. Ukraine (no. 56849/00, §§ 25-31 29
June 2004), Zhovner v. Ukraine (no. 56848/00, §§
23-29, 29 June 2004), and Skrypnyak and Others v. Ukraine
(nos. 9177/05, 14241/05, 10596/06, 17346/06, 20912/06 and 34604/06,
§§ 7-13, 10 July 2008).
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 ARTICLES 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicants complained of the lengthy 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 maintained that the judgments at issue had been fully
enforced and therefore the applicants could no longer claim to be
victims of violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1. They submitted copies of
the applicants’ statements addressed to the State Bailiffs’
Service in which the applicants had declared that they did not have
any further complaints about enforcement.
The
applicants maintained their complaints concerning the lengthy period
for which the judgments had remained unenforced.
The
Court rejects the Government’s preliminary objection as
enforcement of the judgments does not deprive the applicants of their
victim status in relation to the period during which they remained
unenforced (see Romashov v. Ukraine, no. 67534/01, §§
26-27, 27 July 2004).
It
notes that the applicants’ complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and 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 State authorities had taken all
necessary measures to enforce the judgments in question and the
judgments had been enforced in full.
The
applicants disagreed.
The
Court notes that the judgment in favour of the fourth applicant had
remained unenforced, at least in part, for four years and three
months. The judgments in favour of all the other applicants had
remained unenforced, at least in part, for three years and eleven
months.
The
Court has frequently found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention in cases
raising issues similar to those in the present case (see, for
example, Romashov v. Ukraine, § 46, cited above; Pashuk
v. Ukraine, no. 34103/05, §§ 24-25 and 28-29, 12 June
2008; and Skrypnyak and Others v. Ukraine, §§ 23-24
and 27-28, cited above). 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 and Article 1 of Protocol No. 1
to 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
applicants claimed EUR 10,000 for non-pecuniary damage.
The
Government contested these claims.
The Court notes that the applicants 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, the Court awards each of the
applicants EUR 600 (six hundred euros) in respect of non-pecuniary
damage.
B. Costs and expenses
The applicants claimed EUR 15
each for the costs and expenses incurred by each of them before the
Court, but provided relevant supporting documents to the amount of
only EUR 5 for each of them.
The
Court considers it reasonable to award each of the applicants EUR 5
for costs and expenses.
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 applicants’ complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention
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 each of the applicants, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 600
(six hundred euros) in respect of non-pecuniary damage and EUR 5
(five euros) for costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable on
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
