[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SPAS AND VOYNA v. UKRAINE
(Application
no. 5019/03)
JUDGMENT
STRASBOURG
7
December 2006
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 Spas and Voyna v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 13 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5019/03) 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 Taisiya Timofeyevna
Spas and Ms Tamara Vladimirovna Voyna (“the applicants”),
on 20 December 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
20 January 2006 the Court decided to communicate the
complaints concerning the non-enforcement of the judgments in the
applicants' favour to the Government. Under the provisions of
Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1949 and 1953 respectively
and live in Kherson. They are former employees of the OJSC “Dnipro”
(“the Dnipro,” ВАТ
“Дніпро”).
At the material time the State owned more than 25% of the Dnipro's
shares. The company was therefore subject to the Law of
29 November 2001 “on the Introduction of a Moratorium
on the Forced Sale of Property.”
- On
16 October 1996 the State Property Fund (Фонд
державного
майна
України)
ordered the creation of the Dnipro's subsidiary company “Energiya”
(the “Subsidiary,” ДП
“Енергія”).
The applicants were reassigned to the Subsidiary.
- On
various dates the applicants instituted civil proceedings in the
Komsomolsky District Court of Kherson (the “District Court,”
Комсомольський
районний суд
м. Херсона)
against the Subsidiary for salary arrears and other payments.
- On
16 January and 18 August 2001 and 11 March 2002, the District
Court awarded UAH 5,161.07,
UAH 2,490.74
and UAH 1,167.60
respectively in favour of Ms Spas.
- On
16 January and 16 July 2001 and 11 March 2002, the District Court
awarded UAH 6,381,
UAH 1,728.79
and UAH 602.24
respectively in favour of Ms Voyna.
- The
judgments given in favour of the applicants were not appealed
against, became final and the writs of enforcement were transferred
to the Komsomolsky District Bailiffs' Service (“the Bailiffs,”
Відділ
Державної
виконавчої
служби Комсомольського
районного
управління
юстиції в м.
Херсоні)
for enforcement.
- On
27 April 2001 the Bailiffs attached the Subsidiary's
equipment for forced sale. However, the sale was cancelled, as
Bailiffs learned that the equipment was formally owned by the Dnipro,
held in a tax lien and subject to a moratorium on the forced sale
(see paragraph 4 above).
- On
2 November 2001 each applicant received UAH 300
of the awards due to them under the judgments given in their favour.
- On
4 April 2002 the Kherson Regional Commercial Court
(Господарський
суд Херсонської
області)
declared the Subsidiary bankrupt and ordered its liquidation, which
was completed by 25 May 2004.
- The
judgments given in favour of the applicants remain largely
unenforced.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law can be found in Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
- The
applicants complained about the State authorities' failure to enforce
the judgments of the Komsomolsky District Court of Kherson given in
their favour. They invoked Articles 6 § 1 and 13
of the Convention which provide, insofar 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 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
I. ADMISSIBILITY
- The
Government raised objections, contested by the applicants, regarding
exhaustion of domestic remedies similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement of
judgments against the State-owned companies (see e.g. among many
others, Mykhaylenky and Others v. Ukraine, nos. 35091/02
and following, §§ 38-40,
ECHR 2004-XII and Sychev v. Ukraine, no. 4773/02, §§ 42-46,
11 October 2005). The Court considers that these objections must
be rejected for the same reasons.
- The
Court concludes that the application raises issues of fact and law
under the Convention, the determination of which requires an
examination on the merits. The Court finds no ground for declaring it
inadmissible. The Court must therefore declare it admissible.
II. MERITS
- In
their observations, the Government contended that there had been no
violation of Article 6 § 1 of the Convention.
- The
applicants disagreed.
- The Court notes that the judgments in the applicants'
favour have remained unenforced for a considerable period of time.
Notably, the delays in their enforcement range from four years and
nine months to five years and eleven months.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Sokur v. Ukraine, cited above, §§ 36-37
and Sharenok v. Ukraine, no. 35087/02, §§ 37-38,
22 February 2005).
- 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.
- The
Court does not find it necessary in the circumstances to examine
under Article 13 of the Convention the same complaint as under
Article 6 § 1 (see Derkach and Palek v.
Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December
2004).
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 the unsettled judgments debts
due to them and unspecified sums of adjustment to inflation,
by way of compensation for pecuniary damage. Additionally,
each applicant claimed EUR 20,000 (twenty thousand euros) in
respect of non-pecuniary damage.
- The Government submitted that these claims were
exorbitant and unsubstantiated and preferred to leave it to the Court
to determine the awards on an equitable basis.
- The
Court notes that, as the judgments given in favour of the applicants
remain unenforced, the Government should pay the applicants the
outstanding debts in order to satisfy their claims for pecuniary
damage. It further dismisses the remainder of the applicants' claim
for pecuniary damage as unsubstantiated (compare and contrast, e.g.
Reynbakh v. Russia, no. 23405/03, § 34-35,
29 September 2005 and Levin v. Russia, no. 33264/02,
§§ 31-34, 2 February 2006).
- The
Court further takes the view that the applicants have suffered some
non-pecuniary damage as a result of the violations found.
Nevertheless, the particular amounts claimed are excessive. Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards each applicant the sum of
EUR 2,600 (two thousand six hundred euros) in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed the global sum of UAH 272.62
in postal and other expenses and presented copies of receipts for
postal, copying, and similar services.
- The
Government offered to pay the applicants UAH 224.30
under this head.
- Regard
being had to the circumstances of the case and the submissions of the
parties, the Court awards the applicants the global sum of EUR 45
(forty five euros) 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
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds
a) that
the respondent State is to pay the applicants within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the unsettled
debts still owed to them, as well as the sum of EUR 2,600 (two
thousand six hundred euros) to each applicant in respect of
non-pecuniary damage and the global sum of EUR 45 (forty five
euros) in respect of costs and expenses, 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;
(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'
claims for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
