LYAKHOVETSKAYA v. UKRAINE - 22539/04 [2006] ECHR 1086 (14 December 2006)

in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” B. Law of Ukraine “on the Prosecutors' Office” The relevant provisions of the Law read as follows: Article 50 “ ... Life and health of the employees of the Prosecutors' Office are subject to mandatory State insurance at the expense of the respective local budgets in the amount of a ten-year allowance payable [to the employee] in his last position.” C. Cabinet of Ministers Regulation “On Approval of the Procedure and Terms of the State Mandatory Personal Insurance of the Employees of the Prosecutors' Office Paragraphs 1 and 3 of the regulation provide that employees of the Prosecutors' Office be insured with the National Insurance Company “Oranta.” Paragraph 7(b) provides that employees, disabled in connection with performance of their professional duties, be entitled to an occupational disability compensation. Paragraph 13(b) establishes that, in order to obtain such compensation, the insured must submit a disability certificate by an authorised medical expert commission and a special insurance form indicating the amount of their monthly allowance payable in their last position. The insurance form must be officially filled out by a designated official of the Prosecutors' Office. D. Law of Ukraine “On the Enforcement Proceedings” Under Article 2 of the Law, the enforcement of judgments is entrusted to the Bailiffs' Service. E. Code of Civil Procedure, 1963 At the material time, Chapter 42 of the Code of Civil Procedure allowed a final and binding judgment to be reviewed under the supervisory review procedure. The supervisory review procedure was repealed in June 2001. F. Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure The relevant provisions of the Law read as follows: Chapter II. Transitional Provisions “ 1. This Law shall enter into force as from 29 June 2001. ...... 5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed against within three months in accordance with the procedure for consideration of cassation appeals (to the Supreme Court of Ukraine).” THE LAW I. SCOPE OF THE CASE The Court notes that after the communication of the application to the respondent Government, the applicant introduced a new complaint under Article 6 § 1. In particular, she maintained that, in filling out her insurance form pursuant the judgment of 6 December 1999, the Prosecutors' Office had indicated an incorrect amount of her monthly allowance. The Court recalls that the applicant's original complaint under Article 6 § 1, which had been lodged more than two years earlier and on which the parties commented, concerned the non-enforcement of the judgment of 6 December 1999. This judgment contained no reference to any particular amount of an allowance to be indicated in the insurance form. Therefore, the Court finds that the applicant's new complaint is not an elaboration of her original complaint and that it is not appropriate now to take it up separately (see Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004). II. ADMISSIBILITY The applicant complained about the State authorities' failure to enforce the judgment of 6 December 1999 in due time. She invoked Article 6 § 1 of the Convention, which provides, 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. ...” The Government raised objections, contested by the applicant, regarding the applicant's victim status, similar to those already dismissed in a number of the Court's judgments regarding non-enforcement of judgments against the State entities (see e.g. among many others, Romashov v. Ukraine no. 67534/01, §§ 23-27, 27 July 2004). The Court considers that these objections must be rejected for the same reasons. The Court concludes that the complaint of the applicant, a retired public prosecutor at the relevant time, under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of 6 December 1999 raises issues of fact and law under the Convention, the determination of which requires an examination on the merits. It finds no ground for declaring this complaint inadmissible. The Court must therefore declare it admissible. III. MERITS In their observations on the merits of the applicant's complaint, the Government contended that there had been no violation of Article 6 § 1 of the Convention. The applicant disagreed. The Court notes that the judgment of 6 December 1999 remained unenforced for six years and three months and that it was enforced only after the case had been communicated to the respondent Government. The Court recalls that it has already found violations of Article 6 § 1 of the Convention in similar cases (see, among many other authorities, Skubenko v. Ukraine , no. 41152/98, § 38, 29 November 2005 and Volosyuk v. Ukraine , no. 60712/00, §§ 37-38, 29 June 2006). 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. There has, accordingly, been a violation of Article 6 § 1 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 . The applicant claimed pecuniary and non-pecuniary damage without specifying the exact amount. . The Government maintained that the applicant has not substantiated her claims. . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non-pecuniary damage, and awards her EUR 2,000 in this respect. B. Costs and expenses The applicant did not submit any claim under this head. The Court therefore makes no award. C. Default interest 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 Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable on 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; Done in English, and notified in writing on 14 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. 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