FIFTH SECTION
CASE OF LYAKHOVETSKAYA v. UKRAINE
(Application no. 22539/04)
JUDGMENT
STRASBOURG
14 December 2006
FINAL
14/03/2007
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 Lyakhovetskaya v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 20 November 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22539/04) 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 Ukrainian national, Ms Lyudmila Aleksandrovna Lyakhovetskaya (“the applicant”), on 9 June 2004.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3. On 5 December 2005 the Court decided to communicate the complaint under Article 6 § 1 of the Convention concerning the non‑enforcement of the judgment 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
4. The applicant was born in 1946 and lives in Odessa.
5. In February 1999 the applicant resigned from her position of the deputy district prosecutor at the Odessa Regional Prosecutors' Office (“the Prosecutors' Office,” Прокуратура Одеської області).
6. On 5 May 1999 the Odessa Medical Expert Commission (“the Expert Commission,” Медико-соціальна експертиза Одеської обласної лікарні) recognised the applicant as falling within the third category of invalidity (третя група інвалідності) resulting from occupational disease (diabetes).
7. In August 1999 the applicant instituted administrative proceedings in the Zhovtnevy District Court of Odessa (“the Zhovtnevy Court,” Жовтневий районний суд м. Одеси) seeking to oblige the Odessa Regional Prosecutor to fill out an insurance form enabling her to obtain a lump sum in professional disability compensation from the State Insurance Company “Oranta” (Національна Акціонерна Страхова Компанія “Оранта”).
8. On 6 December 1999 the Zhovtnevy Court ordered the Prosecutor to fill out the form. This judgment was not appealed against and became final on 16 December 1999.
9. On 14 January 2000 the Prosecutors' Office withheld the case-file from the Zhovtnevy Court to decide, in accordance with the powers vested in it by law at the material time, whether to lodge a protest against the judgment of 6 December 1999 in supervisory review proceedings.
10. On 6 October 2000, following the applicant's complaint about an unjustified lengthy withholding of the case-file, the Prosecutors' Office returned it to the Zhovtnevy Court.
11. On 23 October 2000 the Zhovtnevy Court issued a writ of execution and the Zhovtnevy District Bailiffs' Service of Odessa (“the Bailiffs,” Відділ Державної виконавчої служби Жовтневого районного управління юстиції м. Одеси) initiated enforcement proceedings in respect of the above judgment.
12. On 8 August 2001 the Bailiffs adjourned the enforcement proceedings on the ground that the Prosecutors' Office had lodged a cassation appeal against the judgment of 6 December 1999 with the Supreme Court, in accordance with the transitional provisions of the new law of 21 June 2001, amending the Code of Civil Procedure.
13. On 20 September 2001 the Supreme Court rejected the Prosecutors' Office's request for leave to appeal in cassation.
14. On 8 February 2002 the Prosecutors' Office instituted civil proceedings in the Suvorovsky District Court of Odessa (“the Suvorovsky Court,” Суворовський районний суд м. Одеси) against the applicant and the Expert Commission, alleging that the applicant's diabetes was not an occupational disease. On 8 April 2005 the Suvorovsky Court rejected the claims of the Prosecutors' Office. This judgment was not appealed against and became final in May 2005.
15. In the meantime, on 14 January 2004 the Bailiffs informed the applicant that the writ of execution in respect of the judgment of 6 December 1999 had been lost and advised her to request a duplicate from the Zhovtnevy Court. In 2005 the building of the Prosecutors' Office was set on fire and the documents concerning further course of the enforcement proceedings were lost again.
16. On 18 February 2006 the Bailiffs resumed the enforcement proceedings and on 9 March 2006 the Odessa Regional Prosecutor filled out the applicant's insurance form. On 13 March 2006 the enforcement proceedings were terminated as completed.
II. RELEVANT DOMESTIC LAW
A. The Constitution
17. The relevant provisions of the Constitution read as follows:
Article 124
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
B. Law of Ukraine “on the Prosecutors' Office”
18. The relevant provisions of the Law read as follows:
Article 50
“...Life and health of the employees of the Prosecutors' Office are subject to mandatory State insurance at the expense of the respective local budgets in the amount of a ten-year allowance payable [to the employee] in his last position.”
C. Cabinet of Ministers Regulation “On Approval of the Procedure and Terms of the State Mandatory Personal Insurance of the Employees of the Prosecutors' Office
19. Paragraphs 1 and 3 of the regulation provide that employees of the Prosecutors' Office be insured with the National Insurance Company “Oranta.” Paragraph 7(b) provides that employees, disabled in connection with performance of their professional duties, be entitled to an occupational disability compensation. Paragraph 13(b) establishes that, in order to obtain such compensation, the insured must submit a disability certificate by an authorised medical expert commission and a special insurance form indicating the amount of their monthly allowance payable in their last position. The insurance form must be officially filled out by a designated official of the Prosecutors' Office.
D. Law of Ukraine “On the Enforcement Proceedings”
20. Under Article 2 of the Law, the enforcement of judgments is entrusted to the Bailiffs' Service.
E. Code of Civil Procedure, 1963
21. At the material time, Chapter 42 of the Code of Civil Procedure allowed a final and binding judgment to be reviewed under the supervisory review procedure. The supervisory review procedure was repealed in June 2001.
F. Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure
22. The relevant provisions of the Law read as follows:
Chapter II. Transitional Provisions
“1. This Law shall enter into force as from 29 June 2001.
......
5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed against within three months in accordance with the procedure for consideration of cassation appeals (to the Supreme Court of Ukraine).”
THE LAW
I. SCOPE OF THE CASE
23. The Court notes that after the communication of the application to the respondent Government, the applicant introduced a new complaint under Article 6 § 1. In particular, she maintained that, in filling out her insurance form pursuant the judgment of 6 December 1999, the Prosecutors' Office had indicated an incorrect amount of her monthly allowance.
24. The Court recalls that the applicant's original complaint under Article 6 § 1, which had been lodged more than two years earlier and on which the parties commented, concerned the non-enforcement of the judgment of 6 December 1999. This judgment contained no reference to any particular amount of an allowance to be indicated in the insurance form. Therefore, the Court finds that the applicant's new complaint is not an elaboration of her original complaint and that it is not appropriate now to take it up separately (see Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004).
II. ADMISSIBILITY
25. The applicant complained about the State authorities' failure to enforce the judgment of 6 December 1999 in due time. She invoked Article 6 § 1 of the Convention, which provides, 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. ...”
26. The Government raised objections, contested by the applicant, regarding the applicant's victim status, similar to those already dismissed in a number of the Court's judgments regarding non-enforcement of judgments against the State entities (see e.g. among many others, Romashov v. Ukraine no. 67534/01, §§ 23-27, 27 July 2004). The Court considers that these objections must be rejected for the same reasons.
27. The Court concludes that the complaint of the applicant, a retired public prosecutor at the relevant time, under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of 6 December 1999 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 this complaint inadmissible. The Court must therefore declare it admissible.
III. MERITS
28. In their observations on the merits of the applicant's complaint, the Government contended that there had been no violation of Article 6 § 1 of the Convention.
29. The applicant disagreed.
30. The Court notes that the judgment of 6 December 1999 remained unenforced for six years and three months and that it was enforced only after the case had been communicated to the respondent Government.
31. The Court recalls that it has already found violations of Article 6 § 1 of the Convention in similar cases (see, among many other authorities, Skubenko v. Ukraine, no. 41152/98, § 38, 29 November 2005 and Volosyuk v. Ukraine, no. 60712/00, §§ 37-38, 29 June 2006).
32. 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.
33. There has, accordingly, been a violation of Article 6 § 1 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. 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
35. The applicant claimed pecuniary and non-pecuniary damage without specifying the exact amount.
36. The Government maintained that the applicant has not substantiated her claims.
37. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non-pecuniary damage, and awards her EUR 2,000 in this respect.
B. Costs and expenses
38. The applicant did not submit any claim under this head. The Court therefore makes no award.
C. Default interest
39. 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
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. 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 2,000 (two thousand euros) in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable on 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 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 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPresident Peer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy