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FIFTH
SECTION
CASE OF SERIKOVA v. UKRAINE
(Application
no. 43108/04)
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 Serikova 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. 43108/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms Anna Arkhipovna
Serikova (“the applicant”), on 2 March 2004.
- The applicant was represented by Mr V. Bychkovskiy from
Miusinsk. The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
- On 8 November 2005 the Court decided to
communicate the complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 concerning the
non-enforcement of the judgments in the applicant's 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
applicant was born in 1943 and lives in Vakhrushevo, the Lugansk
region.
- On
5 June 2000 and 5 June 2001 the Krasnyy Luch
Court (Краснолуцький
міський суд
Луганської
області) awarded
the applicant UAH 1,278.79
and UAH 375.06
respectively in salary arrears and other payments against her
employer, the Gob Piles Fire-fighting Department of the State Holding
Company “Donbasantratsyt” (“the Department,”
Управління
з тушіння,
профілактики
териконів та
рекультивації
земель ДХК
„Донбасантрацит”).
These judgments became final and the enforcement writs were
transferred to the Krasnyy Luch
Bailiffs' Service
(“the Bailiffs,” Відділ
Державної
виконавчої
служби Краснолуцького
міського управління
юстиції) for
enforcement.
- In
the meantime, according to the Government, the Department's assets
were held in a tax lien since 12 August 1998, which blocked
the possibility of their sale. Additionally, in accordance with the
explanations of the Bailiffs of 11 February 2005, the
enforcement was impeded by the reorganization of the State Holding
Company “Donbasantratsyt” into the State Enterprise
“Donbasantratsyt” (ГП
“Донбасантрацит”)
and the need to appoint the Department's successor for the purposes
of the enforcement proceedings.
- The
applicant received the debt due to her by the judgment of 5 June 2000
on 14 October 2004 and on 14 October 2005 –
the one due to her by the judgment of 5 June 2001.
II. RELEVANT DOMESTIC LAW
8. The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgments of 5 June 2000 and 5 June 2001 in
due time. She invoked Articles 6 § 1 of the
Convention and Article 1 of Protocol No. 1, 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 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 ....”
I. ADMISSIBILITY
- The Government raised objections, contested by the
applicant, regarding the applicant's victim status, 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, Romashov v. Ukraine, cited
above, §§ 25-27). The Court finds no reason to depart
from its case-law in the present case and accordingly dismisses these
objections.
- The Court concludes that the applicant's complaints
under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 to the Convention about the delay in the
enforcement of the judgments of 5 June 2000 and 5 June 2001
raise issues of fact and law under the Convention, the determination
of which requires an examination on the merits. It finds no ground
for declaring these complaints inadmissible. The Court must therefore
declare them admissible.
II. MERITS
- In
their observations on the merits of the applicant's complaints, the
Government contended that there had been no violation of
Article 6 § 1 of the Convention or Article 1 of
Protocol No. 1.
- The
applicant disagreed.
- The
Court notes that both judgments given in the applicant's favour
remained unenforced for four years and four months.
- The Court recalls that it has already found violations
of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 in a number of
similar cases (see, for instance, Romashov v. Ukraine, cited
above, §§ 42-46 and Sharenok v. Ukraine, no.
35087/02, §§ 34-38, 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 and of
Article 1 of Protocol No. 1.
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, costs and expenses
19. The applicant claimed the unsettled
judgments debts and an additional sum of UAH 5,853.85 (EUR 920)
by way of just satisfaction.
20. The Government noted that the
judgments in the applicant's favour had been enforced in full. They
further raised no objections against paying the aforementioned
additional sum in the event of the Court's finding a violation.
21. The Court recalls that the
judgments in the applicant's favour have been enforced in full (see
paragraph 7) and dismisses therefore the applicant's claim for the
unsettled debts. Regard being had to the circumstances of the case
and the submissions of the parties, the Court awards the applicant
the global sum of EUR 920 by way of just satisfaction.
B. 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 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 according to
Article 44 § 2 of the Convention, the global sum
of EUR 920 (nine hundred twenty euros) by way of just
satisfaction, to be converted into the 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 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 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
