Information Note on the Court’s case-law 69

November 2004

Mykhaylenky and Others v. Ukraine - 35091/02, 35196/02, 35201/02 et al.

Judgment 30.11.2004 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Non-execution of judgments awarding salary arrears to employees of a State-owned enterprise: violation

Article 6

Civil proceedings

Article 6-1

A ccess to court

Non-enforcement of final judgments awarding salary arrears to employees of a State-owned enterprise: violation

The ten applicants, who had worked for a State-owned company which had performed construction work at Chernobyl, instituted proceedings seeking recovery of salary arrears and other payments from their former employer. Judgments in their favour were awarded by the District Court between 1997 and 2000. However, all the judgments remain to a large extent unenforced. The Ministry of Energy informed one of the applicants that the delay in the payment of the salary arrears was caused by the difficult economic sit uation of the debtor company, which required a solution at State level. The debtor company was liquidated in 2002. The applicants’ execution writs were forwarded to the liquidation commission but proceedings are still pending. Enforcement of the judgments prior to the debtor company’s liquidation would have required a special authorisation from the Ministry for Emergencies for attachment of the company’s property, which was not granted.

Law : Government’s preliminary objection ( ratione personae – State liab ility): The Government maintained that the debtor company was a separate legal entity and that the State could not be held responsible for its debts. However, they had not demonstrated that the company enjoyed sufficient institutional and operational indep endence from the State such as to absolve the State from responsibility under the Convention. Several elements confirmed the public nature of the enterprise: firstly, the State was the biggest debtor of the company, secondly, government control had applied not only to the company’s construction activities but even to the terms of employment by the company, and thirdly, the State had prohibited the attachment of the company’s property due to its location in an area which had been contaminated by radiation: o bjection dismissed.

Article 6 (right to a court) – Given the non-execution of the judgments for periods which lasted between three and seven years, including both the enforcement stage and the ongoing debt recovery in the liquidation proceedings, the auth orities had deprived the provisions of Article 6 § 1 of all useful effect.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1 – The failure by the authorities to comply with the judgments had prevented the applicants from receiving in full th e money to which they were entitled.

Conclusion : violation (unanimously).

Article 41 – The Court awarded the applicants pecuniary damage in the amount of the outstanding debts, as well as an amount for non-pecuniary damage. It also made an award for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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