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FIFTH
SECTION
CASE OF NUZHDYAK v. UKRAINE
(Application
no. 16982/05)
JUDGMENT
STRASBOURG
28 May 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 Nuzhdyak v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
judges,
Stanislav Shevchuk, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 5 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16982/05) 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 Stanislava Tadeushivna
Nuzhdyak (“the applicant”), on 22 April 2005.
- The
applicant was represented by Mr I. Melnyk, a lawyer practising
in Kamyanets-Podilsky. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Y. Zaytsev.
- On
13 December 2005 the Court decided to communicate the applicant's
complaints under Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 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 their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Kamyanets-Podilsky,
Khmelnytsky region, Ukraine.
- On
20 August 2002 the local city council decided to put the applicant's
employer, Pharmacy No. 130 (комунальне
підприємство
Аптека № 130),
a municipal enterprise owned and controlled by this council, into
liquidation, and the liquidation proceedings were initiated.
- On
1 June 2004 the Kamyanets-Podilsky City Court awarded the applicant
1,355.41 Ukrainian hryvnyas (UAH)
in salary arrears and other payments due to
her from Pharmacy No. 130.
- This
judgment became final and on 2 September
2004 the State
Bailiffs' Service
instituted enforcement
proceedings.
8. According to the Government,
on 22 September 2004 the State Bailiffs' Service, having terminated
the enforcement proceedings, returned the writ of enforcement to the
applicant on 22 September 2004. According to the Government, the
applicant had been instructed to transfer the writ to the liquidation
commission for further processing but had failed to do so.
- On
16 December 2004 the debtor enterprise was removed from the relevant
companies' register.
- The
judgment of 1 June 2004 remains unenforced.
II. RELEVANT DOMESTIC LAW
- The general provisions of domestic legislation on
enforcement of judicial decisions are set out in the judgment of
27 July 2004 in the case of Romashov v. Ukraine
(no. 67534/01, §§ 16-18).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the State authorities had failed to enforce
the judgment taken in her favour in timely fashion. In this regard
she relied on Article 6 § 1 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 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 ....”
A. Admissibility
- The Government submitted that the applicant's
complaints were outside the six-month time-limit, as, in their
opinion, that time-limit had started to run on 22 September 2004
when the Bailiffs' Service had returned the writ of enforcement to
the applicant (see paragraph 8 above). On the other hand, they
deemed her application incompatible ratione personae, as,
according to them, the applicant had herself made enforcement of the
judgment impossible by having had recourse to the court when the
liquidation proceedings were already pending against the debtor
enterprise and by her failure to introduce her writ of enforcement to
the liquidation proceedings after 22 September 2004.
- The
applicant has failed to submit her observations on the admissibility
in time.
- The
Court notes that shifting to an applicant the burden to seek further
means of enforcement of a judgment against an entity for which a
State is accountable does not relieve that State from its obligation
to enforce the judgment. Having regard to the fact that the judgment
in favour of the applicant has still not been enforced, the Court
reaches the conclusion that the alleged violation of her rights is
ongoing and accordingly the applicant may still claim to be a victim
of the violation. As a consequence, the Government's objections must
be dismissed.
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- In
their observations on the merits of the applicant's claims, 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 has failed to submit her observations on the merits in
time.
- The
Court notes that the judgment in the applicant's favour remained
unenforced for almost five years.
- The
Court reiterates that it has already found violations of
Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 in cases like the present application (see,
among other authorities, Kucherenko v. Ukraine, no.
27347/02, § 27, 15 December 2005).
- Having
examined all the materials 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 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also relied on Articles 1, 4 and 17 of the Convention with
respect to the lengthy non-enforcement of the judgment in her favour.
She also asserted that the respondent State had violated her rights
under the 1961 International Labour Organisation Convention.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, 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 being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of 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, costs and expenses
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
- The
Court, however, notes that it is undisputed that the State still has
an outstanding obligation to enforce the judgment at issue.
Accordingly, the applicant remains entitled to recover the principal
amount of the debt awarded to her in the course of the domestic
proceedings.
B. 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 complaint under Article 6 § 1
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 1 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 outstanding
debt under the judgment of 1 June 2004;
(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.
Done in English, and notified in writing on 28 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
