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FIFTH
SECTION
CASE OF KUTSENKO v. UKRAINE
(Application
no. 41936/05)
JUDGMENT
STRASBOURG
10
December 2009
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 Kutsenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41936/05) 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, Mrs Tamara Ananyevna
Kutsenko (“the applicant”), on 10 January 2005. The
applicant having died in June 2008, Mr Oleg Mykolayovych
Kutsenko, her widower, expressed the wish to pursue the application.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that her Convention rights were
infringed on account of the lengthy non-enforcement of a judgment
given in her favour.
- On
19 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lived in Dnіprodzerzhynsk.
- On
14 May 2004 the Dniprovsky District Court of Dniprodzerzhynsk awarded
the applicant 2,000 hryvnias (UAH) against the
Dniprodzerzhynskteplomerezha municipal company and UAH 1,000
against the Dnipropdzerzhynska Teploelectrotsentral State-controlled
OJSC.
- On
12 August 2004 this judgment became binding for enforcement.
- In September 2004 enforcement proceedings were
instituted to collect the debts. By 7 July 2005 the first debtor had
paid its debt. As regards the second debtor, on several occasions
enforcement proceedings were suspended on various grounds (such as
insolvency proceedings against the debtor and introduction of a
moratorium according to the 2005 Law of Ukraine “On Measures to
Ensure the Stable Operation of Fuel and Energy Sector Enterprises”).
Currently the proceedings are suspended and the debt remains
outstanding.
- On
17 June 2008 the applicant died. By a letter of 28 November 2008 the
applicant’s widower informed the Court of his wish to pursue
the application.
II. RELEVANT DOMESTIC LAW
- The relevant domestic
law is summarised in the judgments of Sokur
v. Ukraine
(no. 29439/02, § 17-22, 26 April 2005, and Kryshchuk
v. Ukraine, no. 1811/06, § 10,
19 February 2009).
THE LAW
I. AS TO THE LOCUS STANDI OF MR KUTSENKO
- The
respondent Government submitted that as the applicant had died the
application should be struck out of the Court’s list. They did
not advance any specific objections as to Mr Kutsenko’s
standing to pursue the application.
- Having
regard to the circumstances of the case and the information in its
possession, the Court considers that the applicant’s widower
has standing to continue the present proceedings in her stead (see
Sharenok v. Ukraine, no. 35087/02, §§ 10-12,
22 February 2005). However, reference will still be made to
the applicant throughout the ensuing text.
II. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The applicant complained about the lengthy
non-enforcement of the judgment given in her favour and that there
were no effective remedies in that respect. She invoked Articles
6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1, which provide, 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 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.”
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 ....”
A. Admissibility
- The
Government submitted that the applicant had not exhausted domestic
remedies in respect of her complaints, as she had never instituted
any proceedings against the State bailiffs.
- The
applicant disagreed.
- The Court reiterates that it has already dismissed
similar objections in other cases concerning the non-enforcement of
judgments against the State-controlled companies (see, for example,
Kozachek v. Ukraine, no. 29508/04, §§ 19-25,
7 December 2006). The Court considers that these objections
must be rejected for the same reasons.
- The
Court finds that the above complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- In
their observations on the merits the Government advanced the
arguments they have frequently put forward in cases like the present
one (see, for example, the Sokur
judgment, cited above, § 28).
- The
applicant asked the Court to find violations of the invoked Articles.
- The
Court reiterates that it has already found violations of
Articles 6 § 1 and 13 of the Convention and
Article 1 of Protocol No. 1 in cases like the
present application (see, for example, Kryshchuk,
cited above, § 19).
- Having examined all the material submitted to it, 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
Articles 6 § 1 and 13 of the Convention and a
violation of Article 1 of Protocol No. 1 in respect of the
lengthy non-enforcement of the judgment in the applicant’s
favour in the present application.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant additionally invoked Articles 1, 2, 3, 8, 17 and 34 in
respect of the facts of the present case.
- Having carefully examined these submissions by the
applicant in the light of all the material in its possession and in
so far as the matters complained of are within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 1,
3 and 4 of the Convention.
IV. 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 50,000 euros (EUR) in respect of
non pecuniary damage.
- The
Government contended that this amount was exorbitant and
unsubstantiated.
- The
Court notes that the State still has an outstanding obligation to
enforce the court decision at issue in the present case. Accordingly,
the applicant’s heirs remain entitled to recover the principal
amount of the debt awarded to the applicant in the course of the
domestic proceedings. The Court further considers that the applicant
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards EUR 1,800 to the applicant’s estate in
this respect.
B. Costs and expenses
- The
applicant did not lodge 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 complaints under Articles 6 § 1
and 13 of the Convention and Article 1 of Protocol No. 1
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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’s estate, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,800 (one thousand eight hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into the national currency of Ukraine 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
