(Applications nos. 1755/05 and 25912/06)
12 March 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 Otychenko and Fedishchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 17 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Mrs Otychenko
B. Mrs Fedishchenko
II. RELEVANT DOMESTIC LAW
19. Article 143 of the 1996 Constitution of Ukraine provides:
“Territorial communities of a village, settlement and city, directly or through the bodies of local self-government established by them, manage the property that is in municipal ownership; [...] establish, reorganise and liquidate municipal enterprises, organisations and institutions, and also exercise control over their activity; [...].”
20. Article 31 of the Property Act 1991 (repealed by the Act of 27 April 2007) provides that the State property includes the State property itself and the property of administrative-territorial units (municipal property).
I. JOINDER OF THE APPLICATIONS
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The Court will examine the complaints under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government further submitted that Mrs Otychenko had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In particular, they maintained that she had not availed herself of the opportunity to be registered as creditor in the insolvency and liquidation proceedings pending against the debtor enterprise, and had failed to challenge the liquidation commission's inactivity before the relevant commercial court or apply to any domestic court against the Bailiffs' Service to challenge the allegedly inadequate enforcement of the judgment in her favour.
The Government also challenged the victim status of Mrs Fedishchenko as the awarded amounts had been already paid to her on 15 May 2007.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join the applications;
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,
(i) the outstanding debt under the judgment of 16 December 2002 given in favour of Mrs Otychenko;
(ii) EUR 2,600 (two thousands six hundred euros) to Mrs Otychenko and EUR 700 (seven hundred euros) to Mrs Fedishchenko in respect of non-pecuniary damage, 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 to the applicants;
(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;
Done in English, and notified in writing on 12 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
1 Approximately 596.77 euros (EUR) at the material time.
2 Approximately EUR 305.93 and EUR 94.23 at the material time.
3 About EUR 7,370.94.
4 About EUR 737.09.