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FIFTH
SECTION
CASE OF KRAY v. UKRAINE
(Application
no. 25426/03)
JUDGMENT
STRASBOURG
12
July 2007
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 Kray and Napalkova 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 19 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25426/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mrs Olga Vladimirovna
Kray (“the applicant”), on 10 June 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 April 2006 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in the city of Donetsk.
- On
21 July 2001 the Voroshylivsky District Court of Donetsk (hereinafter
“the Voroshylivsky Court”) awarded the applicant UAH
2,698
in compensation for non-pecuniary damage caused by criminal
proceedings unlawfully instituted against her.
- On
21 August 2001 the Voroshylivsky Court sent the writ of execution to
the Kalininsky District Bailiffs' Service of Donetsk. However, the
writ was returned without execution as the State Budget did not
provide for such payments.
- During
2002, the State Treasury on several occasions informed the applicant
that the above-mentioned court ruling could not be enforced as the
State Budget did not provide for such payments.
- On
13 January 2003 the Voroshylivsky Court sent the writ of execution to
the Pechersky District Bailiffs' Service of Kyiv, which on
15 September 2003 transferred it to the State Treasury.
- In
their submissions of 10 July 2006 the Government stated that during
2004-2006 the Pechersky District Bailiffs' Service with their letters
on several occasions informed the applicant that the amount due was
allocated and that in order to receive payment she had to provide
information concerning her bank account.
- The
applicant informed the Court that she had received such a letter only
once, in September 2004, following which she had immediately provided
the information as required.
- To
date, the amount due to the applicant under the ruling of
21 July 2001 was not paid.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov
v. Ukraine (no. 67534/01, §§ 16-19).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- Relying
on Articles 6 § 1 and 13 of the Convention, the applicant
complained about the non-enforcement of the final court decision
given in her favour. These provisions read, 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.”
A. Admissibility
- The
Government raised objections, contested by the applicant, similar to
those already dismissed in a number of the Court's judgments
regarding non-enforcement against the State institutions (see
Voytenko v. Ukraine, no. 18966/02, § 27-31,
29 June 2004 and Romashov v. Ukraine, cited above,
§§ 28-32). The Court considers that these objections
must be rejected for the same reasons.
- The
Court concludes that the applicant's complaints under Articles 6 § 1
and 13 of the Convention raise issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. It finds no ground for declaring these complaints
inadmissible. The Court must therefore declare them admissible.
B. Merits
- In
their observations, the Government contended that there had been no
violation of the provisions of the Convention in the applicant's
respect. In particular, they submitted that the debt under the ruling
of 21 July 2001 was not paid to the applicant due to her failure to
provide the Bailiffs with the information concerning her bank
account.
- The
applicant disagreed. She maintained that in September 2004 she had
provided the Pechersky District Bailiffs' Service with the
information required.
- The
Court notes that the final court decision given in the applicant's
favour remains unenforced for 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 Romashov,
cited above, §§ 42-46 and Voytenko v. Ukraine,
cited above, §§ 53-55, 29 June 2004).
- 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 the
same complaints under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21
December 2004).
II. 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 USD 150,000 in respect of pecuniary and
non-pecuniary damage.
- The
Government found the applicant's claims excessive and unjustified.
- In
so far as the debt under the ruling of 21 July 2001 in the
applicant's favour has not been paid (paragraph 5 above), the Court
notes that the State's outstanding obligation to enforce this
decision is not in dispute. Accordingly, the Court considers that, if
the Government were to pay the remaining debt owed to the applicant,
it would constitute full and final settlement of the case.
-
As regards the remainder of the applicant's claims for pecuniary and
non-pecuniary damage, the Court, making its assessment on equitable
basis, as required by Article 41 of the Convention, considers it
reasonable to award the applicant EUR 2,000 in respect of her
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed USD 1,000 for the costs and expenses incurred
before the domestic courts and before the Court.
- The
Government contested the claim.
- The
Court notes that the applicant failed to substantiate her claim and
provide necessary documents to support it. Regard being had to the
information in its possession, the Court makes no award.
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 to the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the unsettled
debt still owed to her, as well as EUR 2,000 (two thousand euros) 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;
(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 applicant's
claims for just satisfaction.
Done in English, and notified in writing on 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
