Lexploria

FIFTH SECTION

CASE OF KARPUKHAN AND OTHERS v. UKRAINE

(Applications nos. 45524/05, 39316/07, 39326/07, 39329/07, 39331/07, 39332/07, 39333/07, 39335/07, 39337/07, 39339/07, 39342/07, 39360/07, 39407/07, 39411/07, 39418/07, 39422/07, 39426/07, 39429/07, 39433/07, and 45858/07)

JUDGMENT

STRASBOURG

10 December 2009

FINAL

10/03 /2010

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 Karpukhan and Others v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, Mykhaylo Buromenskiy , ad hoc judge, and Claudia Westerdiek , Section Registrar .

Having deliberated in private on 17 November 2009 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in twenty applications ( see Annex I ) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty Ukrainian nationals :

- Mr Andrey Igorevich KARPUKHAN of Krasnyy Luch , born in 19 82 (no. 45524/05 ) (the first applicant) ;

- Svetlana Mikhaylovna POMOGAYEVA of Krasnyy Luch, born in 1963 ( no. 39316/07) (the second applicant) ;

- Viktor Petrovich YEVTUSHEVICH of Krasnyy Luch, born in 1963 ( no. 39326/07) (the third applicant) ;

- Ludmila Valentinovna MOMRIK of Vakhrushevo, born in 1959 (no. 39329/07) (the fo u rth applicant) ;

- Nina Ivanovna MEDVED of Krasnyy Luch, born in 1956 ( no. 39331/07) (the fifth applicant) ;

- Larisa Aleksandrovna SAMOFALOVA of Krasnyy Luch , born in 19 53 ( no. 3933 2 /07) (the sixth applicant) ;

- Vitaliy Yevgenyevich SAMOFALOV of Krasnyy Luch, born in 1979 ( no. 39333/07) (the seventh applicant) ;

- Tatyana Viktorovna GORSKAYA of Krasnyy Luch , born in 1952 (no. 39335/07) (the eight h applicant) ;

- Valentina Leonidovna SHEVCHENKO of Vakhrushevo, born in 1955 (no. 39337/07) (the n int h applicant) ;

- Valentina Viktorovna SERKINA of Kniaginovka, born in 1955 (no. 39339/07) (the tenth applicant) ;

- Nikolay Mikhaylovich SERKIN of Kniaginovka, born in 1955 (no. 39342/07) (the eleventh applicant) ;

- Tatyana Anatolyevna PINDUR of Kniaginovka, born in 1971 (no. 39360/07) (the twelfth applicant ) ;

- Yelena Vladimirovna KAZHARSKAYA of Vakhrushevo, born in 1965 (no. 39407/07) (the thirteenth applicant) ;

- Lyudmila Aleksandrovna TIMOSHENKO of Vakhrushevo, born in 1969 (no. 39411/07) (the fourteenth applicant) ;

- Olga Aleksandrovna YASYUCHENYA of Krasnyy Luch, born in 197 3 (no. 39418/07) (the fifteenth applicant) ;

- Vitaliy Vladimirovich YASYUCHENYA of Krasnyy Luch , born in 1970 (no. 39422/07) (the sixteenth applicant) ;

- Nataliya Nikolayevna BYCHEK of Vakhrushevo , born in 1964 (no. 39426/07) (the seventeenth applicant) ;

- Vera Sergeyevna NOSKO of Krasnyy Luch, born in 1945 (no. 39429/07) (the eighteenth applicant) ;

- Irina Nikolayevna PIKULINA of Vakhrushevo, born in 1960 (no. 39433/07 ) (the nineteenth applicant) ;

- Ivan Pavlovich ZHUKOV of Krasnyy Luch born in 19 38 (no. 45858/07 ) (the twentieth applicant) .

2 . The applicants were represented by Mr V.N. Bychkovskiy. The Ukrainian Government (“the Government”) were represented by their Agent , Mr Y. Zaytsev .

3 . The Court decided to communicate the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . By decisions of the Krasnyy Luch Town Court adopted between 2002 and 2005 the State Company “Tsentralna Zbagachuvalna Fabryka ' Yanivska ' ” ( ДВАТ « Центральна збагачувальна фабрика “ Янівська ” ») was ordered to pay the applicants various amounts in salary arrears and other payments (see Annex I for details ). The decisions in favour of the applicants remain unenforced.

II. RELEVANT DOMESTIC LAW

5 . The relevant domestic law is summarised in the Sokur v. Ukraine judgment (no. 29439/02, § § 17-22, 26 April 2005 ).

THE LAW

I. JOINDER OF THE APPLICATIONS

6 . In accordance with Rule 42 § 1 of the Rules of Court, the Court decide d to join the applications, given their common factual and legal background.

I I. COMPLAINTS UNDER ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

7 . The applicants complained about the State authorities ' failure to enforce in due time the judgments given in their favour. They invoked 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 int erest and subject to the conditions provided for by law and by the general principles of int ernational 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 int erest ....”

A. Admissibility

8 . The Government submitted no observations on the admissibility of the above compla int s with the exception of application no. 45524/05 . In particular, in that appl ic ation they raised objections regarding the exhaustion of domestic remedies by the first applicant , similar to those which the Court has already dismissed in its judgment in the case of Romashov v. Ukraine (no. 67534/01, §§ 28-32, 27 July 2004). The Court considers that these must be rejected for the same reasons.

9 . The Government further noted that the first applicant had lodged his application with the Court four months after the judgment of the domestic court and two months after the beginning of the enforcement proceedings. They asserted in this regard that at the time it was lodged the application was manifestly ill-founded .

10 . The Court notes that the application to the Court did not preclude the Government from enforcing the judg ment at issue. Moreover , seven years after delivery, the judgment remain s unenforced. Accordingly, the Court rejects the Government ' s preliminary objection .

11 . The Court notes that the application s 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.

B. Merits

12 . In their observations on the merits of the applicants ' claims, the Government contended that there had been no violation of Article 6 § 1 of the Convention or of Article 1 of Protocol No. 1. The delays in the enforcement of the judgments in the applicants ' favour had been due to the large number of enforcement proceedings against the debtor and its financial difficulties. The Government further ma int ained that the b ailiffs ' s ervice had performed all the necessary actions and c ould not be blamed for the delay s .

13 . The applicants disagreed.

14 . The Court notes that the judgments in the applicants ' favour have remain ed unenforced for considerable periods of time. T he shor test period of non- enforcement has been approximately four years (application no . 45858/07) .

15 . The Court points out 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 , cited above, §§ 36-37 , and Sharenok v. Ukraine , no. 35087/02, §§ 37-38, 22 February 2005 ) .

16 . 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.

17 . 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

18 . 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 int ernal 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

19 . A ll the applicants claimed the un paid judgment debt s , inflation adjustments and exemplary damages, based on a 3% int erest rate, by way of pecuniary damage. They also claimed in respect of non-pecuniary damage ( see Annex II for all details) .

20 . The Government contested these claims as excessive and unsubstantiated.

21 . The Court notes that it is undisputed that the State still has an outstanding obligation to enforce the judgments at issue.

22 . It further notes that the applicants ' claims for inflation adjustment are supported by extensive calculations and an official certificate of inflation indexes issued by the State Statistics Committee ( Державний комітет статистики України ) . Taking int o account the fact that the Government did not dispute the method of calculation employed by the applicant s (see , for example , Maksimikha v. Ukraine , no. 43483/02, § 29, 14 December 2006) , the Court awards the applicants the amounts claimed in this respect .

23 . As regards the applicants ' claim s for exemplary damages, the Court has declined on several occasions to impose any form of punitive or exemplary damages (see, for example, Akdivar and Others v. Turkey (Article 50), 1 April 1998, § 38, Reports of Judgments and Decisions 1998 ‑ II; Cable and Others v. the United Kingdom [GC] nos. 24436/94 et seq ., 18 February 1999, § 30; and Orhan v. Turkey , no. 25656/94, § 448, 18 June 2002). It sees no reason to depart from this practice in the present case and therefore rejects th ese claim s .

24 . The Court further finds that the applicants must have suffered non ‑ pecuniary damage on account of the violations found. Ruling on an equitable basis, it awards the applicants the following amounts in respect of non ‑ pecuniary damage:

- the first applicant – 1 , 000 euros (EUR) ;

- the second applicant – EUR 2 , 600 ;

- the third applicant – EUR 1 , 000 ;

- the fourth applicant – EUR 2 , 340 ;

- the fifth applicant – EUR 1 , 000 ;

- the sixth applicant – EUR 2 , 600 ;

- the seventh applicant – EUR 2 , 600 ;

- the eighth applicant – EUR 1 , 000 ;

- the n int h applicant – EUR 1 , 000 ;

- the tenth applicant – EUR 1 , 000 ;

- the eleventh applicant – EUR 2 , 600 ;

- the twelfth applicant – EUR 1 , 000 ;

- the thirteenth applicant – EUR 1 , 000 ;

- the fourteenth applicant – EUR 1 , 000 ;

- t he fifteenth applicant – EUR 1 , 000 ;

- t he sixteenth applicant – EUR 2 , 600 ;

- t he seventeenth applicant – EUR 1 , 000 ;

- the eighteenth applicant – EUR 1 , 000 ;

- the nin e teenth applicant – EUR 1 , 000 ;

- the twentieth applicant – EUR 1 , 000 .

B. Costs and expenses

25 . The first, third, fifth , eight h , ninth, tenth, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, eighteenth and nineteenth applicants claimed EUR 100 each for the costs and expenses incurred before the Court. T he second, fo u rth, sixth, seventh, eleventh and sixteenth applicants claimed EUR 150 each under this head . The twentieth applicant claimed EUR 400.

26 . The Government contested these claims as unsubstantiated.

27 . According to the Court ' s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 40 to each of the applicants to cover their costs for the proceedings before the Court.

C. Default int erest

28 . The Court considers it appropriate that the default int erest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage po int s.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to join the applications;

2. Declares the applications admissible;

3 . Holds that there has been a violation of Article 6 § 1 of the Convention;

4 . Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5 . 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 , the outstanding amounts due to them under the judgments given in their favour and EUR 40 (forty euros) for costs and expenses to each of the applicants , as well as the following sums:

- Mr KARPUKHAN – EUR 111 (one hundred and eleven euros ) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage ;

- Mrs POMOGAYEVA – EUR 25 1 (two hundred and fifty - one euros) in respect of pecuniary damage and EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage;

- Mr YEVTUSHEVICH – EUR 28 7 (two hundred and eighty - seven euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage ;

- Mrs MOMRIK – EUR 401 (four hundred and one euros) in respect of pecuniary damage and EUR 2,340 (two thousand three hundred and forty euros) in respect of non-pecuniary damage;

- Mrs MEDVED – EUR 326 (three hundred and twenty - six euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mrs SAMOFALOVA – EUR 1,85 5 (one thousand eight hundred and fifty - five euros) in respect of pecuniary damage and EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage;

- Mr SAMOFALOV – EUR 26 6 (two hundred and s i xty - six euros) in respect of pecuniary damage and EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage;

- Mrs GORSKAYA – EUR 21 7 ( two hundred and seventeen euros ) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mrs SHEVCHENKO – EUR 217 (two hundred and seventeen euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mrs SERKINA – EUR 141 (one hundred and forty - one euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mr SERKIN – EUR 13 3 ( one hundred and thirty - three euros ) in respect of pecuniary damage and EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage;

- Mrs PINDUR – EUR 205 (two hundred and five euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non ‑ pecuniary damage;

- Mrs KAZHARSKAYA - EUR 1 60 (one hundred and sixty euros ) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mrs TIMOSHENKO – EUR 21 7 (two hundred and seventeen euros) in respect of pecuniary damage and EUR 1,000 (one thousand euro) in respect of non-pecuniary damage;

- Mrs YASYUCHENYA – EUR 442 (four hundred and forty - two euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mr YASYUCHENYA – EUR 51 1 (five hundred and eleven euros) in respect of pecuniary damage and EUR 2,600 (two thousand six hundred euros) in respect of non-pecuniary damage;

- Mrs BYCHEK – EUR 20 8 (two hundred and eight euros ) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non ‑ pecuniary damage;

- Mrs NOSKO – EUR 665 (six hundred and sixty - five euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mrs PIKULINA – EUR 22 4 (two hundred and twenty - four euros ) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

- Mr ZHUKOV – EUR 10,50 5 ( ten thousand five hundred and five euros) in respect of pecuniary damage and EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;

plus any tax that may be chargeable on the sums awarded in respect of non-pecuniary damage ;

(b) that the above amounts shall be converted int o the national currency of the respondent State at the rate applic able at the date of settlement;

(c) that from the expiry of the above-mentioned three months until settlement simple int erest 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 po int s;

6 . Dismisses the remainder of the applicants ' claim s for just satisfaction.

Done in English, and notified in writing on 10 December 2009 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen Registrar President

ANNEX I

Application No.

Date of int roduction

Name of the applicant

Date of decision(s)

Amount(s) awarded by the domestic court

45524/05

29 September 2005

Andrey Igorevich KARPUKHAN

19 May 2005

UAH 3,253.75

(EUR 511.67)

39316/07

11 August 2007

Svetlana Mikhaylovna POMOGAYEVA

( 1) 8 January 2003

( 2) 10 June 2005

( 1) UAH 1,234.12

(EUR 228.46)

( 2) UAH 2,284.79

(EUR 370.20)

39326/07

11 August 2007

Viktor Petrovich YEVTUSHEVICH

17 June 2005

UAH 5,436.3

(EUR 891.93)

39329/07

11 August 2007

Ludmila Valentinovna MOMRIK

( 1) 2 April 2003

( 2) 18 July 2005

( 1) UAH 3,057.71

(EUR 541.90)

( 2) UAH 2,463.62

(EUR 425.93)

39331/07

11 August 2007

Nina I vanovna MEDVED

1 June 2005

UAH 6,083.07

(EUR 974.18)

39332/07

11 August 2007

Larisa Aleksandrovna SAMOFALOVA

( 1) 19 December 2002

( 2) 24 June 2005

( 1) UAH 9,198.42

(EUR 1,736.86)

( 2) UAH 18,204.26

(EUR 2,990.22)

39333/07

11 August 2007

Vitaliy Yevgenyevich SAMOFALOV

( 1) 19 December 2002

( 2) 24 June 2005

( 1) UAH 1,713.05

(EUR 323.46 )

( 2) UAH 1,905.37

(EUR 312.97 )

39335/07

11 August 2007

Tatyana Viktorovna GORSKAYA

11 May 2005

UAH 4,058.67

(EUR 628.83 )

39337/07

11 August 2007

Valentina Leonidovna SHEVCHENKO

11 May 2005

UAH 4,043.96

(EUR 626.55 )

39339/07

11 August 2007

Valentina Viktorovna SERKINA

16 May 2005

UAH 2,632.13

(EUR 413.24 )

39342/07

11 August 2007

Nikolay Mikhaylovich SERKIN

( 1) 19 December 2002

( 2) 16 May 2005

( 1) UAH 1,078.56

(EUR 203.66 )

( 2) UAH 556.02

(EUR 87.29 )

39360/07

25 July 2007

Tatyana Anatolyevna PINDUR

16 June 2005

UAH 3,831.74

(EUR 629.94)

39407/07

25 July 2007

Yelena Vladimirovna KAZHARSKAYA

29 June 2005

UAH 3,027.07

(EUR 500.13)

39411/07

25 July 2007

Lyudmila Aleksandrovna TIMOSHENKO

16 June 2005

UAH 4,111.36

(EUR 675.91)

39418/07

25 July 2007

Olga Aleksandrovna YASYUCHENYA

13 May 2005

UAH 8,245.62

(EUR 1,287.30)

39422/07

25 July 2007

Vitaliy Vladimirovich YASYUCHENYA

( 1) 17 June 2002

( 2) 13 May 2005

( 1) UAH 4,014.24

(EUR 826.30)

( 2) UAH 1,556.17

(EUR 242.95)

39426/07

25 July 2007

Nataliya Nikolayevna BYCHEK

10 June 2005

UAH 3,863.19

(EUR 625.95)

39429/07

25 July 2007

Vera Sergeyevna NOSKO

13 May 2005

UAH 12,213.86

(EUR 1,906.82)

39433/07

25 July 2007

Irina Nikolayevna PIKULINA

1 June 2005

UAH 4,176.46

(EUR 668.85)

45858/07

13 October 2007

Ivan Pavlovich ZHUKOV

28 July 2005

UAH 201,249.35

(EUR 33,239.0)

ANNEX II

Application No.

Name of the applicant

Claim for p ecuniary damage (UAH)

Claim for n on-pecuniary damage (EUR)

inflation adjustments

exemplary damages

45524/05

Andrey Igorevich KARPUKHAN

1,180 . 67

( EUR 111 )

336.92

(EUR 3 2 )

10,000

39316/07

Svetlana Mikhaylovna POMOGAYEVA

2,661.28

( EUR 25 1 )

462.62

(EUR 4 4 )

21,600

39326/07

Viktor Petrovich YEVTUSHEVICH

3,044.33

(EUR 28 7 )

548.15

(EUR 5 2 )

12,400

39329/07

Ludmila Valentinovna MOMRIK

4,259.99

(EUR 401 )

772.68

(EUR 7 3 )

23,400

39331/07

Nina Ivanovna MEDVED

3,461.27

(EUR 326 )

613.37

(EUR 5 8 )

13,200

39332/07

Larisa Aleksand rovna SAMOFALOVA

19,685.42 (EUR 1,85 5 )

3866.83

(EUR 364 )

55,000

39333/07

Vitaliy Yevgenyevich SAMOFALOV

2,821.19

(EUR 26 6 )

570.39

(EUR 54 )

23,500

39335/07

Tatyana Viktorovna GORSKAYA

2,309.38

(EUR 21 7 )

420.26

(EUR 40 )

11,000

39337/07

Valentina Leonidovna SHEVCHENKO

2,301.01

(EUR 217 )

418.74

(EUR 39 )

11,000

39339/07

Valentina Viktorovna SERKINA

1,497.68

(EUR 141 )

272.55

(EUR 2 6 )

9,300

39342/07

Nikolay Mikhaylovich SERKIN

1,410.04

(EUR 13 3 )

312.66

(EUR 29 )

21,000

39360/07

Tatyana Anatolyevna PINDUR

2,180.26

(EUR 205)

396.76

(EUR 37 )

10,700

39407/07

Yelena Vladimirovna KAZHARSKAYA

1 ,695.16

(EUR 1 60 )

305.23

(EUR 2 9 )

9,600

39411/07

Lyudmila Aleksandrovna TIMOSHENKO

2,302.36

(EUR 21 7 )

414.56

(EUR 39 )

10,900

39418/07

Olga Aleksandrovna YASYUCHENYA

4,691.76

(EUR 442 )

853.81

(EUR 80 )

16,000

39422/07

Vitaliy Vladimirovich YASYUCHENYA

5,421.55

(EUR 51 1 )

975.66

(EUR 92 )

26,000

39426/07

Nataliya Nikolayevna BYCHEK

2,198.16

(EUR 20 8 )

400.02

(EUR 38 )

10,800

39429/07

Vera Sergeyevna NOSKO

7,059.61

(EUR 665 )

1,264.71

(EUR 119 )

20,000

39433/07

Irina Nikolayevna PIKULINA

2,376.41

(EUR 22 4 )

432.46

(EUR 4 1 )

11,000

45858/07

Ivan Pavlovich ZHUKOV

111,492.14 (EUR 10,50 5 )

19,747.30 (EUR 1,86 1 )

243,400

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CASE OF KARPUKHAN v. UKRAINE

CASE OF KARPUKHAN v. UKRAINE

LEXI