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FIFTH
SECTION
CASE OF
GURSKA v. UKRAINE
(Application
no. 35185/04)
JUDGMENT
STRASBOURG
14
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 Gurska v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35185/04) 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, Mrs Anelya Vatslavivna
Gurska (“the applicant”), on 24 September 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaitsev.
- On
5 December 2005 the Court decided to give notice of the application
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 1956 and lives in the village of Sobolivka, the
Zhytomyr Region.
- By
three judgments of 18 February, 5 March and 20 May 2003 the
Dzerzhynsk Town Court ordered the Sobolivka Village Council to pay
the applicant UAH 4,097.01
in salary arrears and other payments.
- The
Romaniv Town Bailiffs’ Service instituted enforcement
proceedings in respect of the first judgment on 3 March 2003 and in
respect of two other judgments on 26 June 2003.
- On
14 June 2003 the Bailiffs’ Service discontinued the
enforcement proceedings on the ground that the Cabinet of Ministers
of Ukraine had not foreseen the order of payment of such judgment
debts.
- In
January 2004 the applicant lodged a complaint with the same court
against the Bailiffs’ Service for failure to enforce the
judgments in her favour. On 5 February 2004 the court rejected her
claim, finding no fault on the part of the Bailiffs’ Service.
On 8 April 2004 the Zhytomyr Regional Court of Appeal upheld the
decision of the first instance court. The courts held that the
judgments could not be enforced as there were no procedure regulating
the seizure of funds from the accounts of the State Treasury. The
applicant’s appeal in cassation is still pending before the
Supreme Court of Ukraine.
- On
an unspecified date the applicant received UAH 364.92.
The judgments remain to a large extent unenforced (UAH 3,732.09).
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Voytenko
v. Ukraine (no. 18966/02, § 20-25, 29 June 2004).
THE LAW
I. ADMISSIBILITY
- The
applicant complained about the State authorities’ failure to
enforce the judgments of the Dzerzhynsk Town Court of 18 February,
5 March and 20 May 2003 in full and in due time. She invoked
Article 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 ....”
- The
Government contended that the applicant had not exhausted domestic
remedies as the proceedings, in which she had challenged the alleged
inactivity of the Bailiffs’ Service, were still pending before
the domestic courts. The Government further stated that the applicant
had not resubmitted the writs of execution for the judgments of 18
February, 5 March and 20 May 2003 to the Bailiffs’
Service. The Government therefore proposed that the application be
declared inadmissible.
- The
Court recalls that it has already dismissed the Government’s
analogous contentions in similar cases (see, for instance, Voytenko,
cited above, §§
29-31, and Garkusha v. Ukraine, no. 4629/03, §§ 18-19,
13 December 2005) and finds no reason to reach a different
conclusion in the present case.
- The
Court concludes that this part of the application raises issues of
fact and law under the Convention, the determination of which
requires an examination of the merits. It finds no ground for
declaring it inadmissible.
II. MERITS
- In
their observations, the Government put forward arguments similar to
those in the case of Voytenko v. Ukraine, contending that
there had been no violation of either Article 6 § 1
of the Convention or Article 1 of Protocol No. 1
(see Voytenko, cited above, § 37).
- The
applicant disagreed.
- The
Court notes that to date the judgments of the Dzerzhynsk Town Court
of 18 February, 5 March and 20 May 2003 have remained unenforced for
around three years and seven months, and three years and four months,
respectively.
- The
Court recalls that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases raising issues similar to the present application (see
Voytenko, cited above, §§ 39-43 and 53-55).
- Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
convincing 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.
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
applicant claimed the remaining amount of the judgment debts (see
paragraph 9 above) in respect of pecuniary damage. She further
claimed UAH 46,000
for non-pecuniary damage.
- The
Government maintained that the applicant had not substantiated her
claims and submitted that the finding of a violation would constitute
sufficient just satisfaction.
- In
so far as the applicant claimed the amount awarded to her by the
judgments at issue, the Court considers that the Government should
pay her the outstanding debt in settlement of her pecuniary damage.
- As
to the applicant’s claim in respect of non-pecuniary damage,
the Court, making its assessment on an equitable basis, as required
by Article 41 of the Convention, awards the applicant the amount
of EUR 1,300.
B. Costs and expenses
- The
applicant also claimed UAH 600
for the cost of legal advice concerning the domestic proceedings and
those before the Court. She submitted a certificate issued in this
respect by Mr P. Veremchuk, a lawyer practising in the town
of Romaniv, the Zhytomyr Region.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicant the requested sum of
EUR 100 for costs and expenses in the proceedings before the
Court.
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 has been a violation of
Article 1 of Protocol No. 1;
- 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 judgment
debts still owed to her, as well as the following sums, to be
converted into the national currency of the respondent State at the
rate applicable on the date of payment:
(i) EUR
1,300 (one thousand three hundred euros) in respect of non pecuniary
damage;
(ii) EUR
100 (one hundred euros) for costs and expenses;
(iii) plus
any tax that may be chargeable on the above amounts;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
