CASE OF OTYCHENKO AND FEDISHCHENKO v. UKRAINE
Violation of Article 6 - Right to a fair trial
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
4. The applicant was born in 1962 and currently lives in Sevastopol, the Autonomous Republic of the Crimea, Ukraine. 5. At the material time she worked at the Housing Maintenance and Utilities Enterprise “Kotelnikovo” (Управління житлово-комунального господарства «Котельниково»), a municipal enterprise set up and owned by local village council. The labour contract with the applicant was signed by that village council. Subsequently she resigned. 6. On 16 December 2002 the Krasnogvardeyskiy District Court of the Autonomous Republic of the Crimea awarded the applicant 3,151.25 Ukrainian hryvnias (UAH) in salary arrears and other payments due to her by her former employer. 7. This judgment became final and on 30 January 2003 the State Bailiffs’ Service instituted proceedings to enforce it. According to the Government, in the course of these proceedings the total amount of UAH 357.97 was paid to the applicant. The applicant, in her turn, contested that she had ever been paid any sum under the judgment. 8. In September 2003 the applicant instituted another set of proceedings against her former employer seeking additional compensation for salary arrears. On 1 February 2005 the court dismissed her claim. The applicant did not appeal against this judgment. 9. On 15 December 2004 the enforcement proceedings were terminated for lack of funds of the debtor enterprise. The applicant did not challenge this decision before the domestic courts; nor had she reintroduced her writ of enforcement with the State Bailiffs’ Service. 10. On 26 January 2006 the Commercial Court of the Autonomous Republic of the Crimea initiated liquidation proceedings against the debtor enterprise. These proceedings were terminated on 26 February 2007 and the enterprise was removed from the relevant enterprises’ register. The applicant did not raise her creditor claims within these proceedings. 11. The judgment of 16 December 2002 remains unenforced. 12. The applicant was born in 1953 and lives in Pyatykhatky, the Dnipropetrovsk region, Ukraine. 13. On 11 April and 1 October 2003 the Pyatykhatky District Court of Dnipropetrovsk Region awarded the applicant UAH 1,705.14 and UAH 570.41, respectively, in salary arrears due to her by her former employer, the Pyatykhatky Municipal Plumbing Company (Комунальне підприємство водопровідно-каналізаційного господарства в м. П’ятихатки) set up, owned and managed by local town council. 14. These judgments became final and on 30 April 2003 and 30 March 2004, respectively, the State Bailiffs’ Service instituted proceedings to enforce them. 15. The applicant complained to various State authorities about lengthy non-enforcement of the judgments in her favour but to no avail. 16. On 15 May 2007 the awarded amounts were paid to the applicant. 17. The general provisions of domestic legislation on enforcement of judicial decisions are set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19). 18. The provisions of the Civil Code of 18 July 1963 (repealed on 1 January 2004) and the Civil Code of 16 January 2003 (in force since 1 January 2004) on owner’s liability for the obligations of its legal entity are set out in the case of Mykhaylenky and Others v. Ukraine, nos. 35091/02 and foll., §§ 25-26, ECHR 2004XII).