1110/02;1206/02

FIFTH SECTION     CASES OF KOVAL AND PATSYORA v. UKRAINE     (Applications nos. 1110/02 and 1206/02)       JUDGMENT       STRASBOURG   3 May 2007       FINAL     03/08/2007     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 Koval and Patsyora v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:  Mr P. Lorenzen, President,  Mrs S. Botoucharova,  Mr V. Butkevych,  Mrs M. Tsatsa-Nikolovska,  Mr R. Maruste,  Mr J. Borrego Borrego,  Mrs R. Jaeger, judges, and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 3 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in two applications (nos. 1110/02 and 1206/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mrs Olga Mykolayivna Koval and Mrs Alla Oleksandrivna Patsyora (“the applicants”), on 25 November 2001. 2.  The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Valeria Lutkovska, Mrs Zoryana Bortnovska and Mr Yuriy Zaytsev. 3.  On 17 October 2003 (no.1110/02) and 21 October 2003 (no. 1206/02) 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 application at the same time as their admissibility. 4.  On 11 January 2006 the Court additionally decided to communicate to the Government the applicants' complaints under Article 6 § 1 as to violation of their right to access to the court. THE FACTS I.  THE CIRCUMSTANCES OF THE CASE 5.  Mrs Olga Mykolayivna Koval (the first applicant) was born in 1964. Mrs Alla Oleksandrivna Patsyora (the second applicant) was born in 1952. Both applicants are former teachers at a local school and live in the town of Rozdilna, the Odessa Region. 6.  On 7 October 1999 the Rozdilna Court (Роздільнянський районний суд Одеської області) awarded the first and the second applicants, respectively, UAH 1,248[1] and UAH 2,485.28[2] against the Department for Education of the Rozdilna Municipal Council (hereafter “the Department”) for arrears in some payments additional to their salaries (see, in this respect, Kechko v. Ukraine, no. 63134/00, §§ 9-11, 8 November 2005). 7.  On 18 October 1999 the court issued writs of execution, which were submitted to the Rozdilna District Bailiffs' Service (hereafter “the Bailiffs”). 8.  In letters of 22 February 2001, the Bailiffs informed the applicants that the judgments in their favour had not been executed because the 1999 State Budget did not preview the expenditure for teachers' social benefits. In the 2000 State Budget teaching programmes were funded only 2.8% of actual needs. The 2001 State Budget likewise did not provide funds for this purpose. The State Administration further stated that such payments could only be made after the adoption of relevant legislation by Parliament. 9.  On 2 April 2001 the Odessa Regional Department of Justice notified the first applicant that the judgment of 7 October 1999 could not be immediately enforced due to the Department's lack of property that could be attached. 10.  On 30 July 2001 the Velykomykhaylivsky Court rejected the applicants' complaints against the alleged Bailiffs' inactivity. 11.  On 14 May 2002 the Odessa Regional Court of Appeal, following the second applicant's appeal, upheld this decision. The applicant was present at this hearing. She did not appeal in cassation. 12.  On 24 May 2002 the Velykomykhaylivsky Court left without consideration the first applicant's appeal against the decision of 30 July 2001 for failure to comply with the formalities as to its content and to pay the court fee and allowed her time until 26 June 2002 to rectify the mistakes. On 3 July 2002 the court returned the appeal without consideration for failure to rectify it. 13.  On 29 December 2001 the first applicant was paid UAH 160. 14.  On 14 August 2003 the Bailiffs returned the execution writs of 18 October 1999 to the applicants, stating that the judgments could not be enforced as the State Budget provided no funds for such payments. 15.  The judgments of 7 October 1999 remain unenforced until present. II.  RELEVANT DOMESTIC LAW 16.  The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19) and Kechko v. Ukraine (cited above, §§ 16-18). THE LAW I.  JOINDER OF THE APPLICATIONS 17.  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. II.  ADMISSIBILITY A.  Complaints about the non-enforcement of the judgments in the applicants' favour 18.  Relying on Articles 6 § 1 and 13 of the Convention, the applicants complained about the non-enforcement of the judgments given in their favour. These provisions read, 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 13 “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.” 19.  The Government stated that the applicants has not exhausted the domestic remedies as they had failed to challenge before the domestic court the rulings of the Bailiffs' Service, whereby their writs of execution were returned to them unenforced on account of the debtor's lack of funds. 20.  The applicants disagreed. 21.  The Court notes that a similar objection has already been dismissed in a number of Court judgments (see, among many other authorities, the aforementioned Romashov judgment, §§ 28-32; and Glova and Bregin v. Ukraine, nos. 4292/04 and 4347/04, § 14, 28 February 2006). Accordingly, it dismisses the Government's preliminary objection and declares these applicants' complaints admissible. B.  Other complaints 22.  The applicants alleged that in the course of the proceedings against the Bailiffs they were denied right to appeal and refer, in substance to Article 6 § 1 of the Convention. 23.  However, in the light of all the materials in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 24.  It follows that these parts of the applications must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention. III.  MERITS 25.  The Government acknowledged the need to enforce the judgments given in favour of the applicants. They maintained that the Bailiffs had performed all necessary actions to enforce the judgments, and could not be held liable for the delays in the enforcement proceedings. They further stated that the judgments had remained unenforced due to a lack of budget funding, which in turn was caused by the State's critical financial situation. 26.  The applicants disagreed. 27.  The Court notes that in the present cases the enforcement of the judgments of 7 October 1999 was delayed for seven years and six months[3]due to the State's failure to foresee the relevant expenditure in the State Budget. 28.  The Court accepts that appropriations for the payment of State debts may cause some delay in the enforcement of judgments from the Government's budget. Nevertheless, the Court considers that, by failing to make such appropriations for several consecutive years, the respondent State fell short of its obligations under Article 6 § 1 of the Convention (see Voytenko v. Ukraine, no. 18966/02, § 42, 29 June 2004). Moreover the State's lack of funds cannot justify the non-enforcement of a court judgment against it. 29.  The foregoing considerations lead the Court to conclude that the enforcement of the judgments given in favour of the applicants was not carried out within a reasonable time. There has accordingly been a violation of Article 6 § 1 of the Convention. 30.  The Court does not find it necessary in the circumstances to examine the same complaint under Article 13 of the Convention (see Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December 2004). IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.  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 32.  The applicants claimed UAH 50,000[4] each in respect of pecuniary and non-pecuniary damage. 33.  The Government found the applicants' claims excessive and unjustified. 34.  In so far as the judgment debts in the applicants' favour have not been paid (paragraphs 9 and 15 above), the Court notes that the State's outstanding obligation to enforce these judgments is not in dispute. Accordingly, the Court considers that, if the Government were to pay the remaining debts owed to the applicants, it would constitute full and final settlement of the cases. 35.  As regards the remainder of the applicants' claims for pecuniary and non-pecuniary damage, the Court, making its assessment on equitable basis, as required by Article 41 of the Convention, considers it reasonable to award the applicants a global sum of 2,000 euros (EUR) each. B.  Costs and expenses 36.  The applicants did not submit any claim under this head within the set time-limit; the Court therefore makes no award under this head. 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 concerning the non-enforcement of the judgments under Articles 6 § 1 and 13 of the Convention 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 it is not necessary to examine the applicants' complaints under Article 13 of the Convention;   5.  Holds (a)  that the respondent State is to pay to each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the debts still owed to them under the judgments of the Rozdilna Court of 7 October 1999, as well as EUR 2,000 (two thousand euros) each in respect of pecuniary and non-pecuniary damage, to 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; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   6.  Dismisses the remainder of the applicants' claims for just satisfaction. Done in English, and notified in writing on 3 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia Westerdiek Peer Lorenzen  Registrar President [1].  Approximately EUR 210. [2].  Approximately EUR 410. [3].  To be amended. [4].  Approximately EUR 8,500.