Borisov and Others v. Ukraine
Violation of Article 6 - Right to a fair trial; Violation of Article 1 of Protocol No. 1 - Protection of property
Berörda konventionsartiklar
FIFTH SECTION
CASE OF BORISOV AND OTHERS v. UKRAINE
(Application no. 34091/03)
24 April 2008
24/07/2008
This judgment may be subject to editorial revision.
In the case of Borisov and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President, Karel Jungwiert, Volodymyr Butkevych, Rait Maruste, Mark Villiger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, judges, and Claudia Westerdiek, Section Registrar ,
Having deliberated in private on 25 March 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1 The case originated in an application (no. 34091/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 43 Ukrainian nationals on 30 August 2003.
2 The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3 On 14 May 2007 the Court decided to communicate the complaints concerning the delay in enforcement of the final judgments given in the applicants’ favour against the State-owned mining companies 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 All forty-three applicants are Ukrainian nationals who live in the Lugansk Region. They are represented by Mr Nikolay Kozyrev.
1 Enforcement proceedings against the State-owned mining companies
5 The forty-two applicants (see Annex) are/were employees or relatives of employees of State-owned mining companies. During 1999 - 2003 the Krasny Luch Court rendered decisions the applicants’ favour concerning the recovery of salary and/or social benefits arrears, which were enforced in full in 2004 - 2005 with the exception of the judgment in favour of Mr Korniyenko, which remains unenforced (see Annex for details).
6 Some of the applicants attempted to claim compensation against the Bailiffs’ Service for the delay in the enforcement of the judgments given in their favour, however, these attempts have been to no avail.
7 After the institution of the Convention proceedings, Mr Boiko Vladimir Ivanovich, Mr Bakushev Valentin Ivanovich, and Mr Butorin Viktor Nikolayevich died. Their widows, Mrs Boiko Valentina Iosifovna, Mrs Bakusheva Tamara Trofimovna, and Butorina Irina Nikolayevna, informed the Court that they wished to pursue the applications of their late husbands.
2 Enforcement proceedings against KSP “Krasnoluchsky”
8 The 43 rd applicant, Mrs Melnikova Inessa Gennadiyevna, is a former employee of the collective agricultural enterprise “Krasnoluchsky” (KSP). The decision given by the Krasny Luch Court on 26 December 2001 ordering KSP to pay her UAH 3,519 in salary arrears was enforced in full on 4 April 2007.
II. RELEVANT DOMESTIC LAW
9 The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. AS TO THE LOCUS STANDI OF Mrs BOIKO, Mrs BAKUSHEVA AND Mrs BUTORINA
10 The respondent Government did not advance any arguments against the standing of the widows of Mr Boiko, Mr Bakushev, and Mr Butorin.
11 Having regard to the circumstances of the case and the information in its possession, the Court considers that the widows of these applicants have standing to continue the present proceedings in their stead (see Sharenok v. Ukraine , no. 35087/02, §§ 10-12, 22 February 2005). However, reference will still be made to the applicants throughout the text.
II. COMPLAINTS UNDER ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ABOUT THE DELAY IN THE ENFORCEMENT OF JUDGEMENTS
12 The applicants complained about the State authorities’ failure to enforce the judgments given in their favour in due time. They invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The impugned provisions 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. ...”
“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
1 As to the enforcement of the judgments against the State-owned mining companies
13 The Court notes that these 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.
2 As to the enforcement of the judgment against KSP “Krasnoluchsky”
14 The Court observes that the lengthy non-enforcement of the judgment given favour of Mrs Melnikova was due to the private entity’s lack of funds. However, the State cannot be considered responsible for such lack of funds and its responsibility extends no further then the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002). Moreover, the applicant did not apply to any domestic court against the alleged omissions or inactivity of the Bailiffs’ Service in the impugned enforcement proceedings (see, for instance, Dzizin v. Ukraine (dec.), no. 1086/02, 24 June 2003).
15 It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
B. Merits
16 The Government contended that there had been no violation of the Convention rights.
17 The applicants disagreed.
18 The Court notes that the judgments in the applicants’ favour were not enforced for considerable periods of time.
19 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).
20 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.
21 There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
22 Lastly, the applicants complained under Article 14 of the Convention, in conjunction with Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, that the non-enforcement of the judgments given in their favour amounted to discrimination against them.
23 However, in the light of all the materials in its possession, the Court finds that they do not disclose any appearance of discrimination in the exercise of one of the rights or freedoms set out in the Convention or its Protocols.
24 It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
25 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
26 The applicants claimed the amounts of judgments’ debts in compensation of pecuniary damage as well as amounts raging from EUR 2,500 to EUR 4,000 in compensation of non-pecuniary damage.
27 The Government contested these claims.
28 The Court finds that the Government should pay to Mr Nikolay Stepanovich Korniyenko the respective judgment’s debt, where it remains outstanding, by way of pecuniary damage.
29 Otherwise, the Court does not discern any causal link between the violations found and the pecuniary damage alleged by other applicants; it therefore rejects the remainder of the claims for pecuniary damage.
30 The Court further finds that the applicants must have suffered non-pecuniary damage on account of the violations found. It, therefore, makes awards in respect of non-pecuniary damage (see Annex).
B. Costs and expenses
31 The applicants did not submit any separate claim under this head; the Court therefore makes no award.
C. Default interest
32 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 complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the lengthy non-enforcement of the judgments against the State-owned mining companies admissible and the remainder of the application inadmissible;
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;
4 Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention:
i. the amounts for non-pecuniary damage as indicated in the Annex, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
ii. the outstanding debt under the judgment of 24 June 1999 given in favour of Mr Nikolay Stepanovich Korniyenko, to be converted into the national currency of the respondent State 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 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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 24 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
ANNEX
No
Applicant
Employer
Judgments’ debts (UAH)
Period of non-enforcement
Non-pecuniary damage award (EUR)
1
Borisov Vladimir Aleksandrovich
“Knyagininska” mine
4,508
03.01.2001 – 22.12.2004
1,600
2
Bagriy Ivan Ivanovich
“Khrustalskaya” mine
7,747
03.01.2001 – 02.11.2004
1,600
3
Klyagin Ivan Ivanovich
“Knyagininska” mine
3,942
10.09.2001 – 12.10.2004
1,000
4
Usatenko Sergey Ivanovich
“Miusinska” mine
1,006
23.01.2002 – 27.08.2004
800
1,189
03.04.2002 – 15.11.2004
5
Kovalev Vasiliy Vladimirovich
“Knyagininska” mine
4,776
28.08.2001 – 12.10.2004
1,000
6
Kozlov Sergey Viktorovich
“Knyagininska” mine
1,530
10.04.2002 – 20.09.2004
800
7
Kozlova Ekaterina Aleksandrovna
“Miusinska” mine
2,447
17.04.2002 – 09.06.2004
500
8
Kozlov Viktor Mikhaylovich
“Knyagininska” mine
6,300
04.04.2001 – 12.10.2004
1,300
9
Khvorostyanko Aleksandr Anatolyevich
“Knyagininska” mine
4,096
21.06.2001 – 12.10.2004
1,300
10
Yatsenko Vasiliy Grigoriyevich
“Knyagininska” mine
6,137
04.04.2001 – 12.10.2004
1,300
11
Demidenko Vladimir Grigoriyevich
“Knyagininska” mine
3,196
10.12.2001 –
12.10.2004
800
12
Kononchuk Vasiliy Nilokayevich
“Knyagininska” mine
5,806
20.06.2001 –
12.10.2004
1,300
13
Grebenyuk Nikolay Nikolayevich
Department on mining equipment
6,764
14.03.2002 –
12.10.2004
800
14
Korniyenko Nikolay Stepanovich
“Donbasantratsyt”
1,458
24.06.1999 –
present
2,600
15
Troyanovskiy Yaroslav Vladimirovich
“Knyagininska” mine
6,628
20.06.2001 – 20.09.2004
1,000
16
Kalinina Galina Vladimirovna
“Izvestiy” mine
1,861
27.06.2001 – 08.10.2004
1,300
17
Volkova Valentina Nikolayevna
“Izvestiy” mine
2,194
27.06.2001 – 02.11.2004
1,300
18
Adzhygitov Karibulla Nurullovich
“Knyagininska” mine
1,327
18.10.2000 – 26.08.2004
1,600
No
Applicant
Employer
Judgments’ debts (UAH)
Period of non-enforcement
Non-pecuniary damage award (EUR)
19
Timinskaya Svetlana Nikolayevna
“Miusinska” mine
14,431
18.10.2000 – 18.11.2004
1,600
20
Oderiyev Yuriy Fedorovich
“Izvestiy” mine
4,260
13.06.2001 – 02.11.2004
1,300
21
Oderiyev Nikolay Fedorovich
“Izvestiy” mine
6,405
31.06.2002 –
02.11.2004
1,300
22
Vodyannik Ivan Fedorovich
“Knyagininska” mine
3,518
05.06.2001 – 20.09.2004
1,000
1,292
05.08.2002 – 12.10.2004
23
Predybaylo Aleksey Dmitriyevich
“Knyagininska” mine
5,963
28.01.2001 –
12.10.2004
1,300
24
Zhygulina Vera Stepanovna
“Antratsytugleservis”
1,554
10.04.2001 – 25.11.2004
1,300
25
Rechin Vladimir Nikolayevich
“Knyagininska” mine
4,288
25.07.2001 –
12.10.2004
1,000
26
Gatilov Yuriy Ivanovich
“Miusinska” mine
4,659
20.12.2000 –
25.11.2004
1,600
19,206
23.10.2002 –
25.11.2004
27
Gurskaya Nina Vladimirovna
“Knyagininska” mine
1,978
30.08.2001 –
12.10.2004
1,000
28
Garalevich Yefrosinya Petrovna
“Knyagininska” mine
2,924
30.04.2001 –
12.10.2004
1,300
29
Tkachenko Ivan Ivanovich
“Krasnoluchska” mine
3,675
04.04.2001 – 02.11.2004
1,300
30
Sedayev Sergey Vasiliyevich
“Izvestiy” mine
4,021
25.08.1999 – 21.10.2004
2,100
31
Smirnov Yuriy Alekseyevich
“Knyagininska” mine
8,209
03.05.2001 – 12.12.2004
1,300
32
Rodionov Viktor Dmitriyevich
“Izvestiy” mine
7,120
03.04.2001 –
02.11.2004
1,300
33
Kovalev Gennadiy Alekseyevich
“Knyagininska” mine
7,975
25.05.2001 – 13.10.2004
1,300
34
Ptushkin Aleksandr Ivanovich
“Donbasantratsyt”
2,816
19.04.2000 – 27.10.2004
1,800
35
Pedorenko Petr Prokofiyevich
“Krasnokutska” mine
5,581
07.11.2001 – 10.11.2004
1,000
No
Applicant
Employer
Judgments’ debts (UAH)
Period of non-enforcement
Non-pecuniary damage award (EUR)
36
Boiko Vladimir Ivanovich
“Donbasantratsyt”
3,580
19.02.2003 – 17.09.2004
300
37
Bakushev Valentin Ivanovich
“Knyagininska” mine
891
19.02.2003 – 19.09.2005
800
38
Butorin Viktor Nikolayevich
“Miusinska” mine
2,487
14.11.2001 – 02.11.2004
1,000
39
Chernenko Aleksandr Sergeyevich
“Miusinska” mine
1,756
11.10.2000 – 25.11.2004
1,600
40
Sayko Nadezhda Nikolayevna
“Krasnoluchska” mine
4,600
16.07.2001 – 20.09.2005
1,600
41
Kytsyuk Tatyana Vasilyevna
“Donbasantratsyt”
1,980
10.05.2000 – 28.10.2004
1,800
42
Gurskiy Leonid Vladimirovich
“Knyagininska” mine
8,178
12.09.2001 – 29.10.2004
1,000