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FIFTH
SECTION
CASE OF
SHAPKINA v. UKRAINE
(Application
no. 20028/04)
JUDGMENT
STRASBOURG
13
November 2008
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 Shapkina v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 20028/04) 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 Kazakh national, Ms Valentina
Grigoryevna Shapkina (“the applicant”), on 20 May 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
13 November 2007 the Court declared the application partly
inadmissible and decided to communicate the complaint under Article 1
of Protocol No.1 to the Convention about the non-enforcement of the
judgment given in the applicant's favour against the Bailiffs'
Service. Under the provisions of Article 29 § 3
of the Convention, it decided to examine the remainder of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Ms Valentina Grigoryevna Shapkina, is a Kazakh national
who was born in 1937 and lives in the town of Berdyansk, Ukraine.
- On
7 August 1998, the Berdyansk Court convicted Ms K. and Ms
L. of fraud and awarded the applicant 19,357 Ukrainian hryvnas (UAH)
in compensation for pecuniary and non-pecuniary damage caused to the
applicant by these persons.
- As
the judgment of 7 August 1998 had not been enforced by the
Berdyansk Bailiffs' Service (Відділ
державної
виконавчої
служби Бердянського
міського управління
юстиції Запорізької
області),
the applicant instituted proceedings against the latter in the
Berdyansk Court. The applicant claimed compensation for pecuniary and
non-pecuniary damage caused to her by the lengthy non-enforcement of
the judgment.
- On
19 December 2002 the court found in part for the applicant.
By its judgment, the court ordered that the Berdyansk Bailiffs'
Service pay the applicant UAH 5,635.90
in compensation for pecuniary and non-pecuniary damage caused to the
latter as a result of the Bailiffs' failure to take all necessary
enforcement actions during the relevant period.
-
Being dissatisfied with the amount of the compensation awarded to
her, the applicant lodged an appeal against the above judgment. On
24 November 2003 the Zaporizhzhya Regional Court of Appeal
upheld the judgment of the first instance court. On the same date the
judgment of 19 December 2002 became final.
- On
19 January 2004 the applicant transferred the enforcement
writ in respect of the judgment of 19 December 2002 to the
Berdyansk Bailiffs' Service. On 27 February 2004 the enforcement writ
was transferred for enforcement to the Primorsky Bailiffs' Service.
- On
5 April 2004 the latter instituted enforcement proceedings in respect
of the judgment of 19 December 2002.
- On
1 November 2005 the Primorsky Bailiffs' Service suspended enforcement
proceedings since the Berdyansk Bailiffs' Service had no property
that could be attached.
- The
judgment of 19 December 2002 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Romashov v.
Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
THE LAW
I. SCOPE OF THE CASE
- In
her reply to the Government's observations the applicant invoked
Article 13 of the Convention referring to the same facts.
- In
the Court's view, the new complaint is not an elaboration of the
applicant's original complaint to the Court, which had been
communicated to the respondent Government. The Court considers,
therefore, that it is not appropriate now to consider it (see
Novitskiy v. Ukraine (dec.), no. 20324/03, 16 October
2007; Piryanik v. Ukraine, no. 75788/01, § 20,
19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained about the non-enforcement of the judgment of
19 December 2002. She invoked Article 1 of Protocol No. 1
to the Convention, which reads as follows:
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 contested that argument.
A. Admissibility
- The Government raised objections regarding exhaustion
of domestic remedies similar to those which the Court has already
dismissed in a number of similar cases concerning the non-enforcement
of the court judgments (see, Romashov v. Ukraine, no.
67534/01, § 28, 27 July 2004). The Court considers that these
objections must be rejected for the same reasons.
- The
Court concludes that the applicant's complaint raises issues of fact
and law under the Convention, the determination of which requires an
examination on the merits. It finds no ground for declaring it
inadmissible. The Court must therefore declare it admissible.
B. Merits
- The
Government contended that there had been no violation of Article 1
of Protocol No. 1.
- The
applicant disagreed.
- The Court notes that the judgment of 19 December 2002,
which became final in November 2003, remains unenforced for more than
four years and nine months.
- The
Court recalls that it has frequently found violations of Article 1
of Protocol No. 1 to the Convention in cases raising similar issues
to the present application (see, for example, Zubko and Others v.
Ukraine, nos. 3955/04, 5622/04, 8538/04 and 11418/04, §§
65-70, 26 April 2006).
- 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 1 of Protocol No. 1 to the Convention.
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 USD 5,000 in respect of the pecuniary damage caused
to her as a result of the non-enforcement of the judgment of 7 August
1998. She made no claims in respect of the pecuniary damage caused to
her as a result of the non-enforcement of the judgment of 19 December
2002.
She
claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government noted that the subject of this Court's consideration had
been the non-enforcement of the judgment of 19 December 2002 and
therefore her claims for pecuniary damage should be rejected.
They
further considered the applicant's claim for non-pecuniary damage
unsubstantiated and exorbitant.
- The
Court notes that the applicant did not submit any claim for pecuniary
damage caused to her as a result of the non-enforcement of the
judgment of 19 December 2002. The Court therefore makes no award in
this respect.
As
regards the applicant's claim for non-pecuniary damage, the Court,
making its assessment on an equitable basis, as required by
Article 41 of the Convention, considers it reasonable to award
the applicant a global sum of EUR 1,400 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed UAH 3,000
for costs and expenses.
-
The Government agreed to pay the applicant UAH 170.52.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 EUR 30 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 remainder of the application
admissible;
- Holds that there has been a violation of Article
1 of 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
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR
1,400 (one thousand four hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
30 (thirty euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
