FIFTH SECTION
CASE OF MIRVODA v. UKRAINE
(Application no. 42478/04)
JUDGMENT
STRASBOURG
7 December 2006
FINAL
07/03/2007
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 Mirvoda v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 13 November 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 42478/04) 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 Lyubov Nikolayevna Mirvoda (“the applicant”), on 12 November 2004.
2. The applicant was represented by Mr V. Bychkovskiy from Miusinsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3. On 8 November 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 judgments 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 1958 and lives in Krasnyy Luch, the Lungansk region.
5. On 23 October 2000 the Krasnyy Luch Court (Краснолуцький міський суд Луганської області) gave two judgments in favour of the applicant against the State Open Joint Stock Mining Company Krasnolutska (ДВАТ Шахта „Краснолуцька” ДП ДХК „Донбасантрацит”). By these judgments the court awarded the applicant UAH 932.04[1] in salary arrears and 8,850 kilos of coal, respectively. The judgments became final and the enforcement writs were transferred to the Krasnyy Luch Bailiffs' Service (Відділ Державної виконавчої служби Краснолуцького міського управління юстиції) for enforcement.
6. On 28 October 2004 the judgment awarding the applicant salary arrears was enforced in full. The judgment awarding the applicant coal has been partly enforced. To present day the applicant has received 2,950 kilos of coal. In accordance to the Government, the enforcement is impeded by the debtor's economic hardships.
II. RELEVANT DOMESTIC LAW
7. A description of the relevant domestic law can be found in Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
8. The applicant complained about the State authorities' failure to enforce the judgments of the Krasnyy Luch Court of 23 October 2000 in due time. She invoked Articles 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 ....”
I. ADMISSIBILITY
9. The Government submitted no observations on the admissibility of the applicant's complaints.
10. The Court finds 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 judgments of 23 October 2000 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. The Court must therefore declare them admissible.
II. MERITS
11. 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.
12. The applicant disagreed.
13. The Court notes that the delay in the enforcement of the judgment awarding the applicant salary arrears was four years and the delay in the enforcement of the judgment awarding her coal has exceeded six years and one month.
14. 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, Sokur v. Ukraine, cited above, §§ 36-37 and Sharenok v. Ukraine, no. 35087/02, §§ 37-38, 22 February 2005).
15. 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.
16. There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. 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
18. The applicant claimed the coal due to her by the judgment of 23 October 2000 and an additional sum of UAH 3,678.54 (EUR 590) by way of compensation for pecuniary damage. Additionally, she claimed UAH 6,321.46 (EUR 1,010) in compensation for non-pecuniary damage.
19. The Government submitted that the obligation to provide the applicant coal was not in dispute. They further maintained that the remainder applicant's claim for pecuniary damage was unsubstantiated. As regards the applicant's claim for non-pecuniary damage, the Government preferred to leave it to the Court to determine the award.
20. The Court considers that the Government should provide the applicant the coal still owed to her, which would constitute full and final settlement of her claim for pecuniary damage. The Court further considers that the applicant must have sustained non-pecuniary damage as a result of the violations found. Having regard to the circumstances of the case and the submissions of the parties, the Court awards the applicant EUR 1,010 in this respect.
B. Costs and expenses
21. The applicant did not submit any separate claim under this head; the Court therefore makes no award in this respect.
C. Default interest
22. 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 of Protocol No. 1 to the Convention;
4. Holds
(a) that the respondent State is to enforce the remaining part of the judgment of 23 October 2000 in favour of the applicant as well as to pay her, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the sum of EUR 1,010 (one thousand and ten euros) in compensation for non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable at 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;
5. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. EUR 203.59.
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