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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

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 ,

The case originated in an application (no. 316/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Yevgeniya Vasilyevna Napalkova (“the applicant”), on 6 November 2003.

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

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To date, the amount due to the applicant under the judgment of 20 May 2002 was not paid.

II. RELEVANT DOMESTIC LAW

The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained about the non-enforcement of the final judgment given in her 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.”

A. Admissibility

The Government raised objections, contested by the applicant, similar to those already dismissed in a number of the Court's judgments regarding non-enforcement against the State institutions (see Voytenko v. Ukraine, no. 18966/02, § 27-31, 29 June 2004 and Romashov v. Ukraine, cited above, §§ 28-32). The Court considers that these objections must be rejected for the same reasons.

The Court concludes that the applicant's complaints under Articles 6 § 1 and 13 of the Convention raise issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring these complaints inadmissible. The Court must therefore declare them admissible.

B. Merits

In their observations, the Government contended that there had been no violation of the provisions of the Convention in the applicant's respect. In particular, they submitted that the debt under the judgment of 20 May 2002 was not paid to the applicant due to her failure to provide the Bailiffs with the information concerning her bank account.

The applicant disagreed. She maintained that in 2002 she had provided the Bailiffs with the information required and later on resubmitted it following the respective Bailiff's requests. She further outlined inaccuracies in the copies of the documents concerning the enforcement proceedings provided by the Government together with their observations.

The Court notes that the final court decision given in the applicant's favour remains unenforced for five years and one month.

The Court recalls that it has already found violations of Article 6 § 1 of the Convention in a number of similar cases (see Romashov, cited above, §§ 42-46 and Voytenko v. Ukraine, cited above, §§ 53-55).

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.

The Court does not find it necessary in the circumstances to examine the same complaints under Article 13 of the Convention (see Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December 2004).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant also complained about the alleged breach of Article 14 of the Convention caused by the non-enforcement of the judgment given in her favour.

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.

It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

III. 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 EUR 10,000 in respect of pecuniary and non-pecuniary damage.

The Government found the applicant's claims excessive and unjustified.

In so far as the judgment's debt in the applicant's favour has not been paid (paragraph 6 above), the Court notes that the State's outstanding obligation to enforce this judgment is not in dispute. Accordingly, the Court considers that, if the Government were to pay the remaining debt owed to the applicant, it would constitute full and final settlement of the case.

As regards the remainder of the applicant's 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 applicant EUR 1,600 in respect of her non-pecuniary damage.

B. Costs and expenses

The applicants did not submit any separate 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 complaint concerning the non-enforcement of the judgment in the applicant's favour admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds that there is no need to examine the complaint under Article 13 of the Convention;

Holds

(a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the unsettled debt still owed to her, as well as EUR 1,600 (one thousand and six hundred euros) in respect of 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;

Dismisses the remainder of the applicant's claims for just satisfaction.

Done in English, and notified in writing on 12 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President

1. EUR 293.11

NAPALKOVA v. UKRAINE - 316/04

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NAPALKOVA v. UKRAINE - 316/04

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