FIFTH SECTION

CASE OF GIMADULINA AND OTHERS v. UKRAINE

(Application s no s . 30675/06 , 30785/06, 32818/06, 34468/06 and 49001/06 )

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 Gimadulina 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 , Rait Maruste , Isabelle Berro-Lefèvre , Zdravka Kalaydjieva , 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 five applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals (“the applicants”):

2 . Mrs Kozlova was represented before the Court by Mr V. Shulgin , a lawyer practising in Vinnytsya , Ukraine .

3 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

4 . On 15 October 2008 the President of the Fifth Section decided to communicate to the Government the applicants ' complaints under Articles 6 § 1 and 13 of the Convention , and Article 1 of Protocol No. 1. I t was also decided to examine the merits of the applications at the same time as their admissibility ( Article 29 § 3) .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . On various dates each of the applicants received one or more final decisions awarding payments by compan ies (see appendix for details) in which the State holds at least 25% of the share capital , and instituted enforcement proceedings to collect the payments.

6 . After those decisions had become final , insolvency or liquidation proceedings against the debtors were initiated. T he State Bailiffs ' Service then terminated the enforcement proceedings against them and transferred the applicants ' writ s of enforcement to the relevant liquidation commission s for further processing. S ome of the debtors were finally liquidated .

7 . In view of the lengthy non-enforcement of the decisions in their favour, some of the applicants (Mrs Gimadulina , Mr Konyayev and Mr Dankov ) unsuccessfully sued the State Bailiff ' s Service for damages . The other applicants complained to various State authorities , also to no avail.

8 . Most of t he decisions in the applicants ' favour were enforced (see appendix for details) .

II. RELEVANT DOMESTIC LAW

9 . The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01 , §§ 16-19).

THE LAW

I. JOINDER OF THE APPLICATIONS

10 . The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

I I. LENGTHY NON-ENFORCEMENT OF THE DECISIONS IN THE APPLICANTS ' FAVOUR

11 . The applicants complained that by failing to enforce the decisions given in their favour the respondent State had violated Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 , which read , 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 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 ... .”

They also complained that they had no effective remedy for their complaints , in breach of Article 13 of the Convention , which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

1. The parties ' submissions

12 . The Government submitted that Mrs Kozlova and Mr Bondarenko had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In particular, they maintained that the se applicants had not availed themselves of the opportunity to be registered as creditors in the insolvency and liquidation proceedings against the debtor companies, and had failed to challenge the liquidation commission ' s inactivity before the relevant commercial court or apply to any domestic court to challenge the allegedly inadequate enforcement by the Bailiffs ' Service of the decisions in their favour.

13 . The Government further contended that Mr Bondarenko had received the payment relating to the decision of 5 June 2002 by November 2004. In support they provided copies of letters from the debtor dated 2 November 2004 and 17 March 2005 , stating that salary arrears had been paid to the applicant , and a letter from the State Bailiffs ' Service apparently sent to the applicant in 2005 (no date specified) stating that he had been paid the total amount of 3,370.67 Ukrainian hryvn ia s ( UAH ) (about 680 euros (EUR)) in the period between September and November 2002 . Although they could not substantiate th eir argument with more convincing evidence , as the relevant enforcement documents had been destroyed, they requested the Court to declare that part of his application incompatible ratione personae . Later, commenting on the applicant ' s just satisfaction claims, the Government stated that they had no objection to the enforcement of the decisions taken in the applicant ' s favour.

14 . The applicants disagreed. In particular, Mr Bondarenko pleaded that the decision of 5 June 2002 was still unenforced and submitted in support a copy of the final court decision of 24 February 2006 , in which the court acknowledged the ongoing failure of the Bailiffs ' Service to enforce the impugned decision.

2. The Court ' s assessment

15 . As regards the Government ' s objection that the applicants had failed to exhaust domestic remedies, the Court notes that similar objections have already been rejected in a number of judgments adopted by the Court (see Sokur v. Ukraine (dec.), no. 29439/02, 16 December 2003; Sychev v. Ukraine , no. 4773/02, §§ 42-46, 11 October 2005 ; and Trykhlib v. Ukraine , no. 58312/00, §§ 38-43, 20 September 2005). The Court considers that these objections must be rejected in the instant case for the same reasons.

16 . As to the question whether the decision of 5 June 2002 has been enforced, the Court, having regard the quality of proof submitted by the parties in support of their contentions and the Government ' s position set out in the later stage s of the present proceedings, considers that the decision in question ha s still not been enforced for the purposes of the case at hand.

17 . The Court further points out that the judgment of 27 October 2006 taken in favour of Mrs Kozlova was enforced by 1 October 2007, that is within less than a year. Such a period cannot , in the Court ' s view, be considered unreasonable. In these circumstances, the Court considers that that part of application no. 32818/06 must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

18 . The Court notes that the remaining complaint 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

19 . The Government advanced their standard arguments for cases concerning the lengthy non-enforcement of domestic court judgments and concluded that there had been no violation of Articles 6 § 1 or 13 of the Convention or of Article 1 of Protocol No. 1 .

20 . The applicants disagreed.

21 . The Court notes that the decisions in the applicants ' favour remained unenforced for at least two years and five month s .

22 . The Court reiterates that it has already found violations of Article s 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 in similar cases (see, among other authorities, Voytenko v. Ukraine , no. 18966/02, §§ 43 , 48 and 55 , 29 June 2004 ).

23 . 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.

24 . There has, accordingly, been a violation of Article s 6 § 1 and 13 of the Convention and a violation of Article 1 of Protocol No. 1 in respect of the lengthy non-enforcement of the decisions in the applicants ' favour in the present applications.

III . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

25 . Mr Bondarenko also complained under Article 1 7 of the Convention with respect to the lengthy non-enforcement of the decisions taken in his favour.

26 . Having carefully considered the complaint , as presented by the applicant, in the light of all the material in its possession, the Court finds that, in so far as the matter complained of is within its competence, it do es not disclose any appearance of a violation of the invoked provision .

27 . It follows that this part of the application must be declared inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

28 . 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

29 . The applicants claimed different amounts (see appendix ) in respect of pecuniary and non-pecuniary damage.

30 . The Government contested most of these claims as excessive and unsubstantiated.

31 . The Court notes that it is undisputed that the State still has an outstanding obligation to enforce the decisions at issue. It further dismisses the remainder of the applicants ' claims for pecuniary damage as unsubstantiated (see, a contrario , Maksimikha v. Ukraine , no. 43483/02, § 29, 14 December 2006). T he Court further awards , on an equitable basis, the following amounts in respect of non-pecuniary damage:

- Mrs Gimadulina – EUR 350;

- Mr Konyayev – EUR 350;

- Mrs Kozlova – EUR 800;

- Mr Dankov – EUR 350; and

- Mr Bondarenko – EUR 2,600.

B. Costs and expenses

32 . Some of the applicants also claimed various amounts (see appendix) for the costs and expense s incurred before the domestic courts and for those incurred before the Court.

33 . The Government contested most of these claims as excessive and unsubstantiated.

34 . According to the Court ' s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

35 . T he Court observes that these requirements have not been met in the instant case. In particular, Mrs Gimadulina , Mr Konyayev and Mr Dankov merely submitted copies of postal vouchers without claiming a specific amount in respect of costs and expenses. Regard being had to the information in its possession and the above criteria, the Court rejects the claim s for costs and expenses in the domestic proceedings but considers it reasonable to award appropriate sum s for the proceedings before the Court (see appendix) . Although the sums substantiated by Mrs Gimadulina and Mr Konyayev are very small, it is obvious that they have incurred more postal expenses than those claimed in making their applications to the Court. For this reason the Court awards them EUR 10 each under this head.

36 . As to the claim by Mrs Kozlova , who was legally represented in the present proceedings, the Court notes that her case is not particularly complex and that she was not required to be legally represented. Furthermore, she failed to comply with the requirements set out in the paragraph 34 above. Regard being had to the information in its possession and to the above considerations, the Court rejects this claim .

C . Default interest

37 . 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. Decides to join the applications;

2. Declares the complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the lengthy non-enforcement of the decisions in the applicants ' favour (except the ones concerning the lengthy non-enforcement of the judgment of 27 October 2006 in application no. 32818/06 ) admissible and the remainder of the applications inadmissible;

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 13 of the Convention;

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

6. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the outstanding debts under the decisions given in the applicants ' favour and the following amounts for non-pecuniary damage and costs and expenses :

- Mrs Gimadulina – EUR 350 (three hundred and fifty euros) in respect of non-pecuniary damage and EUR 10 (ten euros) in respect of costs and expenses ;

- Mr Konyayev – EUR 350 (three hundred and fifty euros) in respect of non-pecuniary damage and EUR 10 (ten euros) in respect of costs and expenses ;

- Mrs Kozlova – EUR 800 (eight hundred euros) in respect of non-pecuniary damage ;

- Mr Dankov – EUR 350 (three hundred and fifty euros) in respect of non-pecuniary damage ; and

- Mr Bondarenko – EUR 2,600 (two thousand six hundred euros).

(b) that the above amounts shall 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 to the applicants ;

(c) 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;

7 . 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

Appendix

Appl. no.

Applicant

Decision taken in the applicant ' s favour on

S um a warded (UAH)

Enforcement proceedings initiated on

S um paid (UAH)

Outstanding debt (UAH)

Debtor

Just satisfaction claims

Just satisfaction award

Pecuniary damage

Non-pecuniary damage

Costs and expenses

30675/06

Gimadulina Yelena Vladimirovna

29 October 2004, Novogrodivka Town Court

500≈ EUR 75.80

7 February 2005

Enforced on 6 March 2009

Subdivision of the Selydivvugillya State Company

( Структурний підрозділ «Виробниче управління теплофікації» ДП «Селидіввугілля » )

EUR 100

EUR 3,500

C osts and expenses in the domestic proceedings

+

UAH 24.04

≈ EUR 2

( incurred before the Court )

EUR 350

(in respect of non-pecuniary damage)

+

EUR 10

(in respect of costs and expenses)

30785/06

Konyayev Andrey Aleksandrovich

29 October 2004, Novogrodivka Town Court

500≈ EUR 75.80

7 February 2005

Enforced on 6 March 2009

Subdivision of the Selydivvugillya State Company

( Структурний підрозділ «Виробниче управління теплофікації» ДП «Селидіввугілля » )

EUR 100

EUR 3,500

C osts and expenses in the domestic proceedings

+

UAH 28.79

≈ EUR 2

( incurred before the Court )

EUR 350

(in respect of non-pecuniary damage)

+

EUR 10

(in respect of costs and expenses)

32818/06

Kozlova Valentina Grigoryevna

18 April 2005, Zamostyansky District Court of Vinnytsya

20,241.61

≈ EUR 2,992.18

10 May 2005

Enforced on 1 October 2007

State Company Agat

( ДП Спеціальне конструкторсько-технологічне бюро «Агат » )

(liquidated on 15 November 2007)

EUR 3,000

Left to the Court ' s discretion

Left to the Court ' s discretion

EUR 800

(in respect of non-pecuniary damage)

27 October 2006, Zamostyansky District Court of Vinnytsya

4,822.10

≈ EUR 791.13

28 November 2006

Enforced on 1 October 2007

-

-

-

-

34468/06

Dankov Anatoliy Klementyevich

29 October 2004, Novogrodivka Town Court

500≈ EUR 75.80

7 February 2005

Enforced on 6 March 2009

Subdivision of the Selydivvugillya State Company

( Структурний підрозділ «Виробниче управління теплофікації» ДП «Селидіввугілля » )

EUR 100

EUR 3,500

C osts and expenses in the domestic proceedings

EUR 350

(in respect of non-pecuniary damage)

49001/06

Bondarenko Mykola Oleksandrovych

5 June 2002, Labour Disputes Commission

4,351

≈ EUR 895.85

12 June 2002

According to the Government, enforced by November 2004

According to the applicant, the debt is still unpaid

DPVO Khimprom

( ДПВО «Хімпром» )

Outstanding indexed debts under the domestic decisions

EUR 30,000

-

EUR 2,600

(in respect of non-pecuniary damage)

20 December 2004, Zamostyansky District Court of Vinnytsya

13,602.08

≈ EUR 1,953.69

N ot specified

1,472.47

12,129.61