FIFTH SECTION
CASE OF MOVSESYAN v. UKRAINE
(Application no. 31088/02)
JUDGMENT
STRASBOURG
21 December 2006
FINAL
21/03/2007
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 Movsesyan 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 27 November 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 31088/02) 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 Russian national, Mr Arshaluys Yegishovich Movsesyan (“the applicant”), on 26 July 2002.
2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska succeeded by Mr Y. Zaytsev.
3. On 21 January 2005 the Court decided to communicate the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 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.
4. In accordance with Article 36 § 1 of the Convention, the Russian Government were invited to exercise their right to intervene in the proceedings, but they declined to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1936 and lived in Ryazan, the Russian Federation. He died on 1 August 2005. By letter of 14 January 2006, Mrs Movsesyan, the applicant's widow, informed the Court that she wished to pursue the application.
6. On 26 November 2001 the Pavlograd Court (Павлоградський районний суд Дніпропетровської області) awarded the applicant a lump sum of UAH 9,114.31[1] in various payments and UAH 416.61[2] in monthly disability allowances against his former employers, the State-owned companies “Dniproshakhtobud” (ДВАТ “Дніпрошахтобуд”), “Kryvbasshakhtoprokhodka” (трест “Кривбасшахтопроходка”) and “Rudoupravlinnya Kirova” (ДП “Рудоуправління ім. Кірова”). The judgment came into force and the enforcement writs were transferred to the Bailiffs' Service for enforcement.
7. On 12 and 23 April 2002 the Bailiffs' Service informed the applicant that the judgment could not be enforced due to the considerable number of enforcement proceedings taken against the debtors and that the sale of the debtors' assets was blocked by the Law of 2001 “on the Introduction of a Moratorium on the Forced Sale of Property.” Later, liquidation procedure was initiated in respect of two of the three debtor-companies.
8. In May 2004 – April 2005 the applicant received, in instalments, the total of UAH 5,275.02[3] of the lump sum award due to him. In September 2005 the remaining part of the award was transferred to the applicant. However, it was returned as unclaimed.
9. In November 2002 the applicant received the monthly allowances in arrears due to him by the judgment of 26 November 2001 and since then was receiving them regularly. The June and July 2005 allowances were returned as unclaimed.
II. RELEVANT DOMESTIC LAW
10. The relevant domestic law is briefly summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
THE LAW
I. AS TO THE LOCUS STANDI OF MRS MOVSESYAN
11. On 14 January 2006 Mrs Movsesyan, the applicant's widow, informed the Court that she wished to pursue the application of her late husband.
12. The respondent Government did not lodge any objections with regard to Mrs Movsesyan's standing.
13. The Court considers that the widow of the applicant has standing to continue the present proceedings in his 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. ADMISSIBILITY
14. The applicant complained about the State authorities' failure to enforce the judgment of 26 November 2001 in due time. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which provide, 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. ...”
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 ....”
15. The Government raised objections, contested by the applicant, regarding exhaustion of domestic remedies similar to those which the Court has already dismissed in other judgments regarding non-enforcement of judgments against the State-owned companies (see e.g., Romashov v. Ukraine, cited above, §§ 30-33). The Court considers that the present objections must be rejected for the same reasons.
16. The Court concludes that the applicant's complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the delay in the enforcement of the judgment of 26 November 2001 raise issues of fact and law under the Convention, the determination of which requires an examination on the merits. It finds no ground for declaring these complaints inadmissible. It must therefore declare them admissible.
III. MERITS
17. 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.
18. The applicant disagreed.
19. The Court notes that the judgment of the Pavlograd Court of 26 November 2001 remained largely unenforced for more than three years and nine months, until September 2005, when the remaining funds were made available to the applicant. It also notes that, notwithstanding the fact that the debts were paid to the applicant in instalments, a substantial amount of the award was paid to the applicant only after the communication of the application to the respondent Government.
20. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in a number of similar cases (see, for instance, Sharko v. Ukraine, no. 72686/01, § 40-42, 19 April 2005 and Sharenok v. Ukraine, cited above, §§ 25-29 and 34-38).
21. 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.
22. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. 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
24. The applicant claimed EUR 3,275.77, as unpaid amount of the judgment debt, multiplied by late payment interest and adjusted to inflation, in respect of pecuniary damage. Additionally, he claimed EUR 60,000 in non-pecuniary damage. He did not present any official documents justifying his calculations.
25. The Government submitted that the aforementioned claims were exorbitant and unsubstantiated.
26. The Court recalls that the unpaid amount of the judgment debt was made available to the applicant, but not claimed (see paragraphs 8-9 above). Regard being had to the circumstances of the case and the submissions of the parties, the Court considers that the Government should pay Mrs Movsesyan the unsettled debt under the judgment of 26 November 2001, including the unpaid part of the lump sum compensation and allowances due to the applicant until 1 August 2005, which would constitute full and final settlement of the applicant's claim for pecuniary damage.
27. The Court further takes the view that the applicant suffered some non-pecuniary damage as a result of the violations found. Nevertheless, the particular amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the sum of EUR 1,200 in respect of non-pecuniary damage.
B. Costs and expenses
28. The applicant also claimed EUR 256.80 for costs and expenses incurred before domestic authorities and before the Court and presented copies of receipts for postal, translation, and copying services.
29. The Government invited the Court to make an award, if any, on an equitable basis.
30. The Court finds that the applicant presented sufficient evidence that the aforementioned expenses had been incurred and finds them reasonable as to quantum. Therefore, the Court awards Mrs Movsesyan the amount claimed in full.
C. Default interest
31. 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 that there has been a violation of Article 1 Protocol No. 1 of the Convention;
4. Holds
a) that the respondent State is to pay Mrs Movsesyan, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the debt still owed to the applicant under the judgment of the Pavlograd Court of 26 November 2001, as well as EUR 1,200 (one thousand two hundred euros) in respect of non-pecuniary damage and EUR 256.80 (two hundred fifty six euros and eighty cents) in respect of costs and expenses 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 amounts 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 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. 1,939.10 euros (“EUR”).
[2]. EUR 88.64.
[3]. EUR 790.
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