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«Віннійчук проти України»: Затримка у реалізації права Заявниці, спричинена неспроможністю національних органів виконати рішення суду, становила невиправданий і непропорційний тягар (ст. 8, ст. 13 Конвенції, заява № 34000/07, від 20.10.2016 р.)

Фабула судового акта: Заявниця, громадянка України В.Віннійчук, стверджувала порушення Україною статті 8, статті 13, Першого протоколу Конвенції.Справа стосувалася незаконного виселення з житла та стверджуваної неспроможності держави відновити право Заявниці на житло на підставі судового рішення.

У 1998 р. Заявниця, яка мала двох дітей, за рішенням суду втратила право на користування квартирою у зв`язку з тим, що тривалий час у ній не проживала. Заявниця стверджувала, що у цей час відбувала покарання у вигляді позбавлення волі на території іншої держави. На підставі судового рішення Заявницю було виселено з квартири, після чого вона була вимушена орендувати житло.

Апеляційний суд скасував рішення суду першої інстанції та відновив право Заявниці на користування квартирою. Проте, з огляду на те, що квартира на той час уже була приватизована і продана іншій особі, виконати рішення суду було неможливо. Міська рада на вимогу суду також не змогла надати Заявниці інше житло. Надалі Заявниця мешкала у квартирі, яку знайшла самостійно після смерті власника, і у 2010 р. за нею було визнано право на користування вказаним житлом.

ЄСПЛ відзначив, що відповідно до національного законодавства та на підставі рішення апеляційного суду Заявниця мала право на користування квартирою, проте була позбавлена можливості реалізувати його. Таким чином, неспроможність державних органів відновити порушені права Заявниці має важливий вплив на її права, гарантовані статтею 8 Конвенції.

ЄСПЛ наголосив, що відсутні будь-які докази того, що державними органами вживалися необхідні заходи з метою пошуку ефективного та оперативного вирішення ситуації Заявниці щодо надання житла. Таким чином, права Заявниці, визнані національними судами, не були реалізовані. ЄСПЛ констатував, що затримка у реалізації права Заявниці на надання житла на підставі остаточного рішення суду становила невиправданий і непропорційний індивідуальний тягар для Заявниці.

ЄСПЛ також відзначив, що Заявниця протягом років скаржилася компетентним національним органам на порушення її прав, проте без видимих позитивних результатів.

З огляду на вищевикладене, ЄСПЛ встановив порушення статті 8, 13 Конвенції. Інші скарги Заявниці було відхилено.

Аналізуйте судовий акт: «Новоселецький про України» (Novoseletskiy v. Ukraine), заява № 47148/99

«Піберник проти Криту» (Pibernik v. Croatia), заява № 75139/01

«МакКанн проти Сполученого Королівства» (McCann v. the United Kingdom), заява № 19009/04

«Кривіцька та Кривіцький проти України» (Kryvitska and Kryvitskyy v. Ukraine), заява № 30856/03

«Варбанов проти Болгарії» (Varbanov v. Bulgaria), заява № 31365/96

FIFTH SECTION

CASE OF VINNIYCHUK v. UKRAINE

(Application no. 34000/07)

JUDGMENT

STRASBOURG

20 October 2016

FINAL

20/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Vinniychuk v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Ganna Yudkivska,
Erik Møse,
Faris Vehabović,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 27 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 34000/07) 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 Valentyna Petrivna Vinniychuk (“the applicant”), on 27 June 2007.

2. The applicant, who had been granted legal aid, was represented by Mr E. Markov, a lawyer practising in Strasbourg. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I.Lishchyna.

3. The applicant alleged, in particular, that the State authorities had failed to act in good time to redress their mistake in depriving her of her municipal housing and that there had been no effective remedies available for her to complain about the lengthy non-enforcement of a court judgment ordering that she be rehoused.

4. On 7 October 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1955 and lives in Stryy.

6. On 25 December 1997 the Stryy prosecutor lodged civil proceedings on behalf of the Stryy City Council seeking to have declared that the applicant had lost her right to occupy a flat provided to her under the protected social tenancy scheme, as she had abandoned it.

7. On 2 February 1998 the Stryy Court allowed this claim.

8. The applicant appealed in cassation. She argued, in particular, that she had not abandoned the flat. She had been absent from Stryy because she had been serving a prison sentence. By the time of the court hearing, she had moved back into the flat and had paid the charges owing. She also noted that she had two dependent children and no other residence.

9. On 16 March 1998 the Lviv Regional Court rejected the cassation appeal by the applicant and the judgment of 2 February 1998 became final. The court noted, in particular, that, as followed from the documents on file, the applicant had been absent from Stryy from 13 March 1996 until 13 December 1997, in view of her arrest followed by a criminal conviction and a prison sentence in Russia. According to Article 71 of the applicable Housing Code, she had lost her occupancy right in respect of the flat previously occupied by her within the period of six months after her conviction had become final.

10. On the same date the court also addressed the City Council in a separate ruling (окрема ухвала) inviting it to consider the applicant’s personal situation and the need for her reintegration into society in deciding on how to use the flat formerly occupied by her. It noted, in particular, that the applicant had no other housing, was unemployed and had two children. The applicant’s children were registered as residents in a two-room flat, which belonged to the applicant’s mother, who was ailing and apparently reluctant to share accommodation with the applicant.

11. On 1 April 1998 the Stryy Mayor reacted at the Lviv Regional Court’s separate ruling informing it that the Stryy Prosecutor had instituted the proceedings against the applicant without consulting the City Council, which had no interest in evicting the applicant. He also assured the court that the City Council would take no action to have the applicant evicted.

12. On 20 May 1998 the Stryy prosecutor instituted eviction proceedings against the applicant under Article 109 of the Housing Code, referring to the fact that she had no legal basis to continue residing in the flat but refused to move out voluntarily. In addition, he presented a letter signed by nine residents of the same building, who alleged that the applicant was regularly organising loud parties and inviting guests with criminal record, who breached peace and damaged public property.

13. On 18 June 1998 the Stryy Court ordered the applicant’s eviction referring to Article 109 of the Housing Code and the fact that she had lost occupancy right in respect of the disputed flat. This judgment became final and was enforced on 13 October 1998.

14. According to the applicant, following eviction she was forced to rent rooms in the flats of various acquaintances and was unable to establish a stable home.

15. According to the Government, following eviction, the applicant and her two children lived with her mother in the latter’s two-room flat which measured 32 sq. m.

16. On 13 December 2000 the Stryy Court awarded tenancy of the applicant’s former flat to A.N., who then acquired it from the municipality through a privatisation scheme and sold it on to O.M. soon afterwards.

17. Following the applicant’s numerous complaints concerning the alleged unfairness of the court decisions depriving her of her occupancy rights, on 30 May 2001 the Presidium of the Lviv Regional Court quashed the judgments of 2 February and 16 March 1998 by way of extraordinary procedure and remitted the applicant’s case to the Stryy Court for a fresh examination.

18. After several rounds of proceedings, on 7 October 2002 the Lviv Regional Court of Appeal upheld the applicant’s right to occupy the disputed flat having rejected the prosecutor’s claim against her. It noted, in particular, that, although the applicant had indeed been absent from the disputed flat for a period exceeding six months before the prosecutor had filed the proceedings, by resuming its occupancy before the case had been examined by the first-instance court, the applicant had restored her right to occupy the disputed flat.

19. On 27 May 2003 the Supreme Court of Ukraine upheld the above judgment and it became final.

20. On an unspecified date the applicant instituted civil proceedings seeking the invalidation of all the transactions in respect of the disputed flat, O.M.’s eviction and a court order allowing the applicant to move back into the flat.

21. On 6 July 2005 the Stryy Court found that there was no call to divest O.M. of her title to the flat, as she had acquired it in good faith when the flat had lawfully belonged to A.N. At the same time, regard being had to the decision restoring the applicant’s right to occupy the same flat, it obliged the City Council to provide the applicant with replacement housing unit equivalent to the flat at issue.

22. This judgment became final and in October 2005 the bailiffs instituted enforcement proceedings.

23. On 20 October 2005 the City Council informed the applicant that it was unable to execute the judgment at the material time, since it had no available housing and no funds to build new units.

24. According to the Government, on an unspecified date the City Council offered the applicant a flat located in V. Street, but the applicant refused.

25. According to the applicant, she was never offered any flats by the City Council.

26. On 28 June 2006 the bailiffs sent the writ of enforcement back to the applicant as unenforceable. It is not clear whether the applicant was in receipt of the above writ.

27. On various occasions the applicant unsuccessfully complained about the non-enforcement of the judgment of 6 July 2005 to various authorities.

28. On 30 May 2007 the Lviv Regional Prosecutor’s Office informed the applicant that they saw no reason to intervene in the situation on the applicant’s behalf, as her right to municipal housing had been restored by way of court proceedings, and the bailiffs’ service had initiated the enforcement proceedings, which, according to their information, had been pending at the material time.

29. On 30 May 2008 the bailiffs’ service informed the applicant, in response to her complaint about delay in the enforcement of the judgment given in her favour, that the enforcement writ had been returned to her in 2006. However, she retained the right to re-introduce it and demand re‑opening of the enforcement proceedings subject to statute of limitation established by applicable law.

30. In August 2008 the applicant identified a flat located in Sh. Street, which was vacant following the death of its former owner in January 2008, and moved into it. According to the applicant, this accommodation was in a dilapidated state and she had invested substantial sums for repairs and renovation.

31. On an unspecified date the applicant instituted civil proceedings seeking to regularise her occupancy of the flat in Sh. Street.

32. On 13 October 2010 the court awarded the flat to the municipality as intestate property and allotted to the applicant the right to occupy it under the protected social tenancy scheme.

33. On 20 July 2012 the applicant acquired the flat from the municipality through a privatisation scheme and registered herself as the owner.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine

34. Article 47 of the Constitution of Ukraine, which is the relevant provision, reads as follows:

“Everyone shall have the right to housing. The State shall create conditions enabling every citizen to build, purchase, or rent housing.

Citizens in need of social protection shall be provided with housing by the bodies of the State and local self-government, free of charge or at a price affordable for them in accordance with law.

No one shall be arbitrarily deprived of housing otherwise than on the basis of the law pursuant to a court decision.”

B. Housing Code of Ukraine of 1983

35. The relevant provisions of the Code as worded at the material time read as follows:

Article 71. Reservation of residential premises for temporarily absent citizens

“In the event of the temporary absence of a tenant or members of his or her family, their residential premises shall be reserved for them for six months.

Should the tenant or members of his or her family be absent for serious reasons for a term exceeding six months, upon the request of the absent person this term may be extended by the lessor, or, in case of a dispute, by a court. ...”

36. According to Article 109 of the Code, eviction from publicly owned residential premises could be only on the grounds established by law and, safe for in certain exceptional cases, on the basis of a court order.

37. According to Article 116 of the Code, occupants of publicly owned residential premises could be evicted in view of their intolerable conduct, if public prevention and other measures aimed at improvement of that conduct had turned out to be ineffective.

38. Other relevant provisions of the Code can be found in the Court’s inadmissibility decision in the case of Velizhanina v. Ukraine ((dec.), no. 18639/03, 27 January 2009).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

39. The applicant complained under Article 8 of the Convention that the State authorities had acted unlawfully and unfairly in depriving her of her flat in 1998 and that they had failed to act in good time in redressing their mistake. She relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

40. The Government submitted that the applicant’s complaint was manifestly ill-founded and lodged in abuse of the right of application. Notably, she had never informed the Court that the municipality had offered her a flat located in V. Street, which she had refused. Likewise, the applicant had not informed the Court that since 2008 she had been occupying a flat in Sh. Street and that the municipality had duly regularised her status as its occupant since 2010. Lastly, the applicant had misled the Court as to her living arrangements after her eviction and before moving into the flat in Sh. Street. In fact, during the entire period at issue the applicant had been living with her mother and children in her mother’s flat, rather than living under irregular lodging arrangements. In support of this argument, the Government provided a certificate from the local housing authority in Stryy indicating that following her return from prison, the applicant had “permanently resided without residence registration” in her mother’s flat “until she had arbitrarily occupied the flat in [Sh. Street]”.

41. The applicant contested these submissions. She submitted that the Government’s assertions that she had been offered a flat in V. Street had been false and not supported by any documentary evidence. She further pointed out that she had duly informed the Court that she had obtained a flat in Sh. Street, after having regularised and duly registered her rights to that flat in 2012 and before the case had been communicated. Lastly, she had not misled the Court by stating that she had been living in ad hoc rental arrangements for a long time, although she had not been able to provide any relevant documents. She had been staying in her mother’s flat from time to time, but that was only in between her temporary rental arrangements. Her mother’s flat, which was comprised of two rooms and measured 32 square metres, had been too small to accommodate her mother, her two children and herself on a permanent basis. Moreover, her brother with his family had also often stayed in the same flat.

42. The Court reiterates that an application deliberately based on false or misleading submissions or on a description of facts omitting events of central importance may in principle constitute an abuse of the right of petition within the meaning of Article 35 § 3 (a) of the Convention (see Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000‑Xl; Al-Nashif v. Bulgaria, no. 50963/99, § 89, 20 June 2002; andPredescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008). However, in the present case it does not find it established that such a situation obtained. It notes in this connection that the Government have not provided any evidence that the municipality had indeed offered any flats to the applicant. The Court also notes that the applicant had duly informed it prior to the communication of the case to the respondent Government that in 2010 she had obtained accommodation. This information was reflected in the Statement of Facts addressed to the Government in October 2013. As regards the applicant’s living arrangements following her eviction and before taking up residence in the flat in Sh. Street, in the Court’s view this information is not essential for the determination of the present complaint.

43. Accordingly, the Court dismisses the Government’s objections.

44. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

45. The applicant maintained that the State authorities had wrongly evicted her from her flat in 1998 and had failed to restore her housing rights for over twelve years. Had it not been for her accidental discovery that the flat in Sh. Street had become vacant and her initiative in occupying it without asking for authorisation, she might never have been allocated a replacement flat. In the applicant’s view, the respondent Government had not provided any evidence that the municipality had taken due steps to put in place an effective solution for the applicant’s housing situation.

46. The Government did not comment on the merits of the applicant’s complaint.

47. The Court reiterates from its established case-law that the concept of a “home” is of central importance to an individual’s identity, self‑determination, physical and mental integrity, maintenance of relationships with others and a settled and secure place in the community (see, among other authorities, Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 44, 2 December 2010 and Gladysheva v. Russia, no.7097/10, § 93, 6 December 2011). Loss of one’s home is a most extreme form of interference with the right to respect for the home (see, among other authorities, McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008, and Kryvitska and Kryvitskyy, cited above, § 41).

48. The Court further notes that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in an effective respect for the applicant’s rights protected under Article 8 of the Convention (see Kontsevych v. Ukraine, no. 9089/04, § 45, 16 February 2012). Whether the case is analysed in terms of a positive duty on the State or in terms of interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see Novoseletskiy v. Ukraine, no. 47148/99, § 69, ECHR 2005‑II (extracts)). This balance may be upset, in particular, on account of important delays in the enforcement of domestic decisions pertinent to the protection of the relevant rights and serious protractions by the authorities in finding effective solutions for the individual situations (see ibid., §§ 78 and 89; Pibernik v. Croatia, no. 75139/01, §§ 69-70, 4 March 2004; mutatis mutandis Dubetska and Others v. Ukraine, no. 30499/03, §§ 144 and 147, 10 February 2011; and Kontsevych, cited above, §§ 47-48). The onus is on the State to justify a situation in which certain individuals bear a heavy individual burden on behalf of the rest of the society (see, mutatis mutandis, Dubetska and Others, cited above, §§ 145 and 155).

49. Turning to the facts of the present case, the Court notes, at the outset, that the applicant was divested of her occupancy right and evicted in 1998, that is, more than six months before the present application was submitted to it (27 June 2007). The Court cannot therefore assess as such the compatibility of the above measures with the applicant’s rights guaranteed by Article 8 of the Convention. However, in the Court’s view, the circumstances, in which the applicant lost her occupancy rights, are pertinent for the assessment of her complaint concerning the prolonged subsequent failure of the municipality to have her re-housed.

50. In this regard the Court observes that on 7 October 2002 the Lviv Regional Court of Appeal reversed the earlier decision divesting the applicant of her right to occupy the disputed flat. However, by that time the flat had been privatised and occupied by a good-faith buyer, so the applicant was unable to return to it. Thus, according to the domestic legal order, the applicant had the right to occupy the flat formally acknowledged by the judicial authorities, however, without a possibility for that right to be realised in practice. Seeking to resolve this situation, the applicant initiated a new set of court proceedings, which resulted in the adoption on 6 July 2005 of another court judgment in the applicant’s favour. That judgment obliged the municipality to provide her with a replacement housing unit (see paragraph 21 above). However, the applicant’s personal situation – namely, the impossibility for her to establish a permanent new home and the need to either share a small two-room flat with her mother, children and possibly other relatives or make do with various ad hoc living arrangements – did not change, because the municipality did not provide any such unit. Accordingly, the failure of the State authorities to re-house the applicant had an important impact on her rights guaranteed under Article 8 of the Convention.

51. The Court has not been provided with any evidence that the State authorities took necessary actions with a view to finding an effective and expeditious solution to the applicant’s housing situation. Insofar as the Government submitted that, contrary to the applicant’s allegations, she had been proposed and had refused a flat in V. Street, as noted above, no details of this offer and no documents in support of this statement have been presented. Furthermore, until 30 May 2008 the applicant was being provided with contradictory information concerning the status of the enforcement of the 2005 judgment given in her favour (see paragraphs 23 and 28-29 above).

52. Overall, based on the information on file, the Court cannot discern what measures, if any, were taken by the municipality to ensure effective realisation of the applicant’s right deriving from the domestic legal order to be housed by the municipality after this right had been duly recognised by the domestic courts, which had, moreover, ordered the domestic authorities to provide the applicant with replacement housing (compare with Novoseletskiy, cited above, §§ 78 and 84).

53. As the Government have not provided sufficient justification for the important delay in realisation of the applicant’s right to be provided with municipal housing following reversal by the domestic courts of their previous judgment divesting her of that right, the Court finds that this delay amounted to an unjustified and disproportionate individual burden for the applicant.

54. There has accordingly been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

55. The applicant next complained that she had had no effective remedies allowing her to complain about the non-enforcement of the judgment ordering the municipality to provide her with new accommodation. She relied on Article 13 of the Convention, which in its relevant parts reads as follows:

“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

56. The Government submitted that Article 13 was inapplicable in the present case, because the applicant had failed to formulate an arguable claim under Article 8 of the Convention.

57. The applicant disagreed.

58. The Court observes that Article 13 has been consistently interpreted in its case-law as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131).

59. In view of the considerations expressed in paragraph 44 above, the Court notes that the applicant made out an arguable claim under Article 8 of the Convention. It finds, accordingly, that her complaint under Article 13 must be declared admissible.

B. Merits

60. The applicant submitted that there had been no effective domestic remedies for her complaint concerning the delayed enforcement of the court judgment in her favour. Over the course of years she had complained to various authorities about the non-enforcement and had not obtained any positive results.

61. The Government did not comment on the merits of the applicant’s complaint.

62. The Court reiterates that it has already found a breach of Article 13 of the Convention in a number of judgments against Ukraine, which concerned delays in the enforcement of court judgments given in the applicants’ favour against the State authorities (see, for example,Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, §§ 66-70, 15 October 2009). In the present case too there is nothing in the parties’ submissions to suggest that there existed a remedy at national level satisfying the requirements of Article 13 of the Convention in respect of the applicant’s complaint about the non-enforcement of the judgment given in her favour.

63. Accordingly, there has been a breach of Article 13 of the Convention in the present case on account of the lack of effective domestic remedies for the applicant’s complaint under Article 8 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

64. Lastly, the applicant complained under Article 1 of Protocol No. 1 that the bailiffs had damaged her personal belongings during the eviction procedure in 1998. The applicant did not present any evidence that she had ever raised this complaint before the domestic authorities. It must therefore be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

65. 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

66. The applicant claimed 3,000 euros (EUR) in respect of pecuniary damage. According to her, this figure was equivalent to the rent payments incurred by her after her eviction and before her taking up residence in the Sh. Street flat. In addition, she claimed EUR 20,000 in non-pecuniary damage.

67. The Government argued that the applicant had never lived in rented accommodation and had therefore not paid any rent. They further maintained that the applicant’s claim for non-pecuniary damage was exorbitant and unsubstantiated.

68. The Court notes that the applicant has not provided any substantiation for her claim concerning pecuniary damage. It therefore dismisses it.

69. On the other hand, the Court finds that the applicant must have suffered non-pecuniary damage on account of the facts giving rise to the finding of violations of the Convention in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non‑pecuniary damage.

B. Costs and expenses

70. The applicant also claimed EUR 1,000 in respect of the costs and expenses incurred before the domestic courts and other authorities over the years of fighting for the restoration of her housing rights and the renovation of her flat in Sh. Street. She also claimed EUR 3,400 in legal fees payable to Mr E. Markov, her counsel in the proceedings before the Court, and EUR 150 for various expenses (telephone, correspondence, printing, copying, and so forth) incurred by him in connection with her representation. She submitted a copy of her contract with Mr Markov signed by her on 28 November 2013, authorising him to claim legal aid from the Court and legal fees from the respondent State and agreeing that any amounts due should be payable directly to his account. She also presented an invoice from Mr Markov indicating that he had spent thirty-four hours on the applicant’s case at the rate of EUR 100 per hour. The applicant also presented receipts and invoices for various postal expenses and stationary supplies for the total amount of EUR 92.04.

71. The Government submitted that the claim for costs and expenses incurred in the domestic proceedings was entirely unsubstantiated. They next maintained that the number of hours and the hourly rate claimed by the applicant’s counsel were exaggerated, regard being had to the fact that his involvement had been limited to preparing a reply to the Government’s observations only. Lastly, as regards Mr Markov’s communication and other costs, it was not possible to discern from the available materials, whether the claimed amount had in fact been spent on the applicant’s case.

72. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and bearing in mind that the applicant was granted EUR 850 in legal aid for her representation by Mr Markov, the Court considers it reasonable to award the overall sum of EUR 1,500 for costs and expenses incurred in the proceedings before the Court to be transferred into the bank account of Mr Markov as requested by the applicant.

C. Default interest

73. The Court considers it appropriate that the default interest rate 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. Declares the complaints under Articles 8 and 13 of the Convention admissible and the remainder of the application inadmissible;

 

2. Holds that there has been a violation of Article 8 of the Convention;

 

3. Holds that there has been a violation of Article 13 of the Convention on account of the unavailability to the applicant of effective remedies for her complaint under Article 8 concerning non-enforcement of a court judgment given in her favour;

 

4. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, to the applicant in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the bank account of the applicant’s lawyer Mr Markov;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško                                Angelika Nußberger
Deputy Registrar                         President

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