Lexploria

FIFTH SECTION

CASE OF BORISOV AND OTHERS v. UKRAINE

( Application no. 34091/03 )

JUDGMENT

STRASBOURG

24 April 2008

FINAL

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 Au g u st 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 complaint s 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 min ing compani es. 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 except ion 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 application s 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 e nforced 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 M rs BOIKO, M rs BAKUSHEVA AND M rs 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, t he Court c onsiders that the widows of the se applicant s ha ve standing to continue the pr esent proceedings in their stead (see Sharenok v. Ukraine , no. 35087/02, § § 10-12, 22 February 2005 ). However, reference will still be made to the applicant s throughout the text.

II. COMPLAINTS UNDER ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL N o . 1 ABOUT THE DELAY IN THE ENFORCEMENT OF JUDGEMENTS

12 . The applicant s 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. ...”

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 ... .”

A. Admissibility

1. As to the enforcement of the judgments against the State-owned mining companies

13 . The Court notes that the se 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.

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 Melnik ova was due to the private entity ’ s lack of funds. However, t he 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 th i s 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 applicant s 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 material s 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 th i s 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 violation s found and the pecuniary damage al leged by other applicants ; it therefore rejects the remainder of the claim s 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 applicant s 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 REASO NS, THE COURT UNANIMOUSLY

1. Declares the complaint s 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)

1Borisov Vladimir Aleksandrovich

“ Knyagininska ” mine

4,508

03.01.2001 – 22.12.2004

1,600

2Bagriy Ivan Ivanovich

“ Khrustalskaya ” mine

7,747

03.01.2001 – 02.11.2004

1,600

3Klyagin Ivan Ivanovich

“ Knyagininska ” mine

3,942

10.09.2001 – 12.10.2004

1,0 00

4Usatenko Sergey Ivanovich

“ Miusinska ” mine

1,006

23.01.2002 – 27.08.2004

800

1,189

03.04.2002 – 15.11.2004

5Kovalev Vasiliy Vladimirovich

“ Knyagininska ” mine

4,776

28.08.2001 – 12.10.2004

1,000

6Kozlov Sergey Viktorovich

“ Knyagininska ” mine

1,530

10.04.2002 – 20.09.2004

800

7Kozlova Ekaterina Aleksandrovna

“ Miusinska ” mine

2,447

17.04.2002 – 09.06.2004

500

8Kozlov Viktor Mikhaylovich

“ Knyagininska ” mine

6,300

04.04.2001 – 12.10.2004

1,300

9Khvorostyanko Aleksandr Anatolyevich

“ Knyagininska ” mine

4,096

21.06.2001 – 12.10.2004

1,300

10Yatsenko Vasiliy Grigoriyevich

“ Knyagininska ” mine

6,137

04.04.2001 – 12.10.2004

1,300

11Demidenko Vladimir Grigoriyevich

“ Knyagininska ” mine

3,196

10.12.2001 –

12.10.2004

800

12Kononchuk Vasiliy Nilokayevich

“ Knyagininska ” mine

5,806

20.06.2001 –

12.10.2004

1,300

13Grebenyuk Nikolay Nikolayevich

Department on mining equipment

6,764

14.03.2002 –

12.10.2004

800

14Korniyenko Nikolay Stepanovich

“ Donbasantratsyt ”

1,458

24.06.1999 –

present

2,600

15Troyanovskiy Yaroslav Vladimirovich

“ Knyagininska ” mine

6,628

20.06.2001 – 20.09.2004

1,000

16Kalinina Galina Vladimirovna

“ Izvestiy ” mine

1,861

27.06.2001 – 08.10.2004

1,300

17Volkova Valentina Nikolayevna

“ Izvestiy ” mine

2,194

27.06.2001 – 02.11.2004

1,300

18Adzhygitov 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)

19Timinskaya Svetlana Nikolayevna

“ Miusinska ” mine

14,431

18.10.2000 – 18.11.2004

1,600

20Oderiyev Yuriy Fedorovich

“ Izvestiy ” mine

4,260

13.06.2001 – 02.11.2004

1,300

21Oderiyev Nikolay Fedorovich

“ Izvestiy ” mine

6,405

31.06.2002 –

02.11.2004

1,300

22Vodyannik Ivan Fedorovich

“ Knyagininska ” mine

3,518

05.06.2001 – 20.09.2004

1,000

1,292

05.08.2002 – 12.10.2004

23Predybaylo Aleksey Dmitriyevich

“ Knyagininska ” mine

5,963

28.01.2001 –

12.10.2004

1,300

24Zhygulina Vera Stepanovna

“ Antratsytugleservis ”

1,554

10.04.2001 – 25.11.2004

1,300

25Rechin Vladimir Nikolayevich

“ Knyagininska ” mine

4,288

25.07.2001 –

12.10.2004

1,000

26Gatilov Yuriy Ivanovich

“ Miusinska ” mine

4,659

20.12.2000 –

25.11.2004

1,600

19,206

23.10.2002 –

25.11.2004

27Gurskaya Nina Vladimirovna

“ Knyagininska ” mine

1,978

30.08.2001 –

12.10.2004

1,000

28Garalevich Yefrosinya Petrovna

“ Knyagininska ” mine

2,924

30.04.2001 –

12.10.2004

1,300

29Tkachenko Ivan Ivanovich

“ Krasnoluchska ” mine

3,675

04.04.2001 – 02.11.2004

1,300

30Sedayev Sergey Vasiliyevich

“ Izvestiy ” mine

4,021

25.08.1999 – 21.10.2004

2,100

31Smirnov Yuriy Alekseyevich

“ Knyagininska ” mine

8,209

03.05.2001 – 12.12.2004

1,300

32Rodionov Viktor Dmitriyevich

“ Izvestiy ” mine

7,120

03.04.2001 –

02.11.2004

1,300

33Kovalev Gennadiy Alekseyevich

“ Knyagininska ” mine

7,975

25.05.2001 – 13.10.2004

1,300

34Ptushkin Aleksandr Ivanovich

“ Donbasantratsyt ”

2,816

19.04.2000 – 27.10.2004

1,800

35Pedorenko 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)

36Boiko Vladimir Ivanovich

“ Donbasantratsyt ”

3,580

19.02.2003 – 17.09.2004

300

37Bakushev Valentin Ivanovich

“ Knyagininska ” mine

891

19.02.2003 – 19.09.2005

800

38Butorin Viktor Nikolayevich

“ Miusinska ” mine

2,487

14.11.2001 – 02.11.2004

1,000

39Chernenko Aleksandr Sergeyevich

“ Miusinska ” mine

1,756

11.10.2000 – 25.11.2004

1,600

40Sayko Nadezhda Nikolayevna

“ Krasnoluchska ” mine

4,600

16.07.2001 – 20.09.2005

1,600

41Kytsyuk Tatyana Vasilyevna

“ Donbasantratsyt ”

1,980

10.05.2000 – 28.10.2004

1,800

42Gurskiy Leonid Vladimirovich

“ Knyagininska ” mine

8,178

12.09.2001 – 29.10.2004

1,000

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CASE OF BORISOV AND OTHERS v. UKRAINE

CASE OF BORISOV AND OTHERS v. UKRAINE

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