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FIFTH
SECTION
CASE OF KRIPAK v. UKRAINE
(Application
no. 6164/05)
JUDGMENT
STRASBOURG
25
September 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 Kripak v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Volodymyr Butkevych,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6164/05) 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 Viktoriya Petrivna
Kripak (“the applicant”), on 2 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
26 November 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
- In
their observations the Government requested the Chamber to relinquish
jurisdiction in favour of the Grand Chamber pursuant to Article 30
of the Convention. In particular, they challenged applicability of
Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in the present case. The Court recalls that it has
already examined similar issues and gave a judgment on them (see, for
instance, Zubko and Others v. Ukraine, nos. 3955/04,
5622/04, 8538/04 and 11418/04, ECHR 2006 ... (extracts),
Voytenko v. Ukraine, no. 18966/02, 29 June 2004 and
Bagriy and Krivanich v. Ukraine, nos. 12023/04 and
12096/04, 9 November 2006). It finds therefore no reason to depart
from its established case-law or to relinquish the Chamber’s
jurisdiction to the Grand Chamber in this particular case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Town of Gayvoron. She worked
as a judge at the Gayvoron Town Court and retired in February 2007.
- On
20 August 2002 the Pecherskyy District Court of Kyiv ordered the
State Treasury to pay the applicant UAH 4,766
in compensation for her uniform.
- On
30 October 2002 the Kyiv City Court of Appeal upheld the judgment.
- On
3 December 2002 the Bailiffs instituted the enforcement proceedings.
- On
3 October 2005 the judgment in the applicant’s favour was
enforced in full.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice are summarised in the judgment of
Zubko and Others v. Ukraine (nos. 3955/04, 5622/04,
8538/04 and 11418/04, §§ 33-43, 26 April 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained under Article 6 § 1 of the
Convention about the delay in the enforcement of the judgment of 20
August 2002 and about a violation of Article 1 of Protocol No. 1 on
the same ground. The provisions invoked read in so far as relevant,
as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
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 or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Government submitted that Article 6 § 1 was not applicable in
the present case stating that the compensation awarded to the
applicant concerned her uniform which she was obliged to wear in the
exercise of public functions. In their view, the award was of a
public law nature and was not decisive for the applicant’s
private law rights or obligations.
- The
Government raised objections regarding exhaustion of domestic
remedies. They stated the applicant had to seek her judgment debt
from the State Judiciary Administration, which according to the
relevant legislation, had funds for the execution of judgments in
favour of judges.
- The
Government also submitted that the uniform for which the applicant
obtained compensation was not her property within the meaning of
Article 1 of Protocol No. 1. It belonged to the State and the
applicant’s complaint under Article 1 of Protocol No. 1 was
thus incompatible ratione materiae with the provisions
of the Convention.
- The
applicant disagreed.
- As regards the Government’s objections to the
admissibility on the grounds of incompatibility
ratione materiae
under Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 raised above, the
Court observes that the applicant’s case concerned the right to
compensation and not, as the Government put it, a title to the
uniform. It also notes that the applicant had access to a court under
national law. Thus, the Court discerns no justification for the
exclusion from the guarantees of Article 6 of the applicant’s
dispute (Vilho Eskelinen and Others v. Finland [GC], no.
63235/00, §§ 62-63, ECHR 2007 ...). Furthermore, the
Court recalls that a judgment debt constitutes possession for the
purposes of Article 1 of Protocol No. 1 and, accordingly, it is
applicable in the present case (see, Voytenko v. Ukraine,
no. 18966/02, §§ 51-54, 29 June 2004).
- As
regards the Government’s objection concerning exhaustion of
domestic remedies, the Court recalls that having obtained a judgment
and an execution order against a particular State authority an
applicant should not be required to institute, on her own initiative,
other proceedings against another State agency to have such a
judgment enforced (Vasylyev v. Ukraine, no. 10232/02,
§ 30, 13 July 2006 and Litovkina v. Ukraine,
no. 35741/04, § 13, 22 November 2005).
19. In
view of the foregoing, the Court concludes that 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.
B. Merits
- The
Court notes that the judgment of 20 August 2002 remained unenforced
for about three years after it became final on 30 October 2002.
- 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, for
instance, Voytenko v. Ukraine, no. 18966/02, 29 June
2004, Zubko and Others v. Ukraine, nos. 3955/04, 5622/04,
8538/04 and 11418/04, ECHR 2006 ... (extracts), and Bagriy
and Krivanich v. Ukraine, nos. 12023/04 and 12096/04, 9
November 2006).
- 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.
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 EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested this claim.
- The
Court, making its assessment on an equitable basis, as required by
Article 41, awards the applicant EUR 800 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses,
therefore, 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 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 in accordance with
Article 44 § 2 of the Convention, EUR 800 (eight
hundred euros), plus any tax that may be chargeable, 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;
(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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
