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FIFTH
SECTION
CASE OF SILKA v. UKRAINE
(Application
no. 3624/03)
JUDGMENT
STRASBOURG
18
January 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 Silka 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 11 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3624/03) 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, Ms Tamara Andreyevna
Silka (“the applicant”), on 16 January 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs Z. Bortnovska succeded by Mr Y. Zaytsev.
- On
19 January 2004 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 1944 and lives in Nova Kakhovka, the Kherson
region. She is a former employee of the State-controlled
OJSC “Pivdenelektromash” (“the Company,”
ВАТ
“Південелектромаш”).
- The
background facts of the case are described in the case of Anatskiy
v. Ukraine (no. 10558/03, §§ 5-8, 13
December 2005).
- On
17 October 2002 the Nova Kakhovka Court (Новокаховський
міський
суд Херсонської
області)
gave two judgments ordering the Company to pay the applicant
UAH 1,316.00
and UAH 1,327.00
in salary arrears due to her and her deceased husband, respectively.
The judgments became final and the enforcement writs were transferred
to the Novа Kakhovka
Bailiffs' Service
(“the Bailiffs,” Відділ
Державної
виконавчої
служби Новокаховського
міського управління
юстиції) for
enforcement.
7. Both
judgments remain unenforced to the present day.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgments of Romashov
v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004)
and Trykhlib v. Ukraine (no. 58312/00, §§
25-32, 20 September 2005).
THE LAW
- The
applicant complained about the State authorities' failure to enforce
the judgments of 17 October 2002. 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 ....”
I. ADMISSIBILITY
- The
Government raised objections, contested by the applicant, regarding
exhaustion of domestic remedies similar to those already dismissed in
a number of the Court's judgments regarding non-enforcement against
the State-owned companies (see e.g. among many others, Mykhaylenky
and Others v. Ukraine, nos. 35091/02 and following,
§§ 38 39, ECHR 2004-XII). The Court considers
that these objections must be rejected for the same reasons.
- The
Court concludes that the applicant's complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 about the
delay in the enforcement of the judgments of 17 October 2002
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 the judgments of 17 October 2002 have
remained unenforced for the period exceeding four years and three
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, including the cases concerning the same
State-owned debtor - the OJSC “Pivdenelektromash” (see,
for instance, Trykhlib v. Ukraine, cited above, §§ 52-53;
Chernyayev v. Ukraine, no. 15366/03, §§ 19-20
and 23-25, 26 July 2005 and Anatskiy v. Ukraine,
cited above, §§ 21-22).
- 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 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 pecuniary and non-pecuniary damage without
specifying the exact amount.
- The
Government maintained that the applicant had failed to submit her
just satisfaction claims within the time limit set by the Court and
invited the Court to make no award.
- The
Court observes that when invited to submit her just satisfaction
claims following the receipt of the Government's observations, the
applicant confirmed the claims which she had made at the time when
she had lodged the present application with the Court.
- Accordingly,
in so far as the judgments in the applicant's favour have not been
paid (paragraph 7 above), the Court considers that the Government
should pay the judgments debts owed to the applicant in settlement of
her claim for pecuniary damage (see e.g., Romanchenko v. Ukraine,
no. 5596/03, § 31, 22 November 2005).
- The
Court further considers that the applicant must have sustained
non-pecuniary damage as a result of the violations found (see
Kryachkov v. Ukraine, no. 7497/02, § 30,
1 June 2006). Making its assessment on an equitable basis,
as required by Article 41 of the Convention, the Court awards
the applicant EUR 1,600 in this respect.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore 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 has been a violation of
Article 1 Protocol No. 1 of 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 in accordance with
Article 44 § 2 of the Convention, the unsettled
debt still owed to her, as well as EUR 1,600 (one thousand six
hundred 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 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 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
