SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1086/02
by Victor Aleksandrovich DZIZIN
against Ukraine
The European Court of Human Rights (Second Section), sitting on 24 June 2003 as a Chamber composed of
MrJ.-P. Costa, President,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 27 November 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Victor Aleksandrovich Dzizin, is a Ukrainian national, who was born in 1926 and resides in the city of Kharkov, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 March 1956, as a result of injuries sustained in an industrial accident, the applicant was unable to work. Thereafter, he was paid a disability pension by his former employer, the Serp i Molot company. According to the applicant, 92% of the shares in the company belong to the State.
In August 1998 the payments ceased and on 14 June 2001 the applicant lodged a claim with the Moskovsky District Court of Kharkov against the company.
On 5 July 2001 the District Court found in favour of the applicant (Рiшення Московського Районного Суду м. Харкова). The decision became effective on 5 August 2001 and was sent for execution to the Moskovsky District Department of the State Bailiffs’ Service (Вiддiл Державної Виконавчої Служби Московського Районного Управлiння Юстицiї м Харкова).
On 11 September 2001, the State Bailiffs’ Service initiated execution proceedings in the applicant’s case. The first payment (328.46 UAH) to the applicant was made on 22 October 2001.
In the absence of further execution, the applicant contacted the bailiff responsible for the execution of the judgment on several occasions and, on 26 February 2002, lodged a complaint with the Head of the Moskovsky District Department of the State Bailiffs’ Service against that bailiff.
On 23 March 2002 the Head of the Moskovsky District Department of the State Bailiffs’ Service replied to the applicant, stating, inter alia, that the judgment could not be executed due to the adoption of the Law of Ukraine “on the Introduction of a Moratorium on the Forced Sale of Property” (Закон України “Про введення мораторiю на примусову реалiзацiю майна”), which had entered into force on 29 November 2001.
On 22 April 2002, a second payment (314.19 UAH) was made to the applicant.
On 11 October 2002, the final payment (5132.99 UAH) was made to the applicant and the court judgment of 5 July 2001 was thereby fully enforced.
B. Relevant domestic law
1. Civil Code of Ukraine
Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim of the creditor, pay the amount of the debt, plus any interest payable at an established inflation rate during the default period.
2. Law of Ukraine of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of Property”
The Law aims at protecting State interests on the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital.
The moratorium has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set.
Section 2 of the Law provides that the forced sale of property includes the execution of writs by the State Bailiffs’ Service over property belonging to undertakings.
The Law applies to immovable property and other fixed assets, which are used in production, as well as shares, owned by the State in the property of other companies and invested to the statutory capital of those enterprises.
The Law therefore stays the execution of all writs by the State Bailiffs’ Service over the above-mentioned assets or undertakings in which the State holds at least 25% of the share capital.
3. Law of Ukraine of 21 April 1999 “on Enforcement Proceedings”
Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against the State Bailiffs’ Service for inadequate enforcement or non-enforcement of a judgment, and to receive compensation.
4. Law of Ukraine of 24 March 1998 “on the State Bailiffs’ Service”
Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.
COMPLAINTS
The applicant complained under Article 1 of Protocol No. 1 that the State has infringed his right to the peaceful enjoyment of his possessions. With respect to the facts of the case, the applicant in substance raised an issue under Article 6 § 1 of the Convention. He further denounced the statutory limitations which were the reason for non-enforcement.
In his later correspondence, the applicant informed the Court that the judgment in his favour had been fully enforced, but he nevertheless requested the Court to continue its consideration of his complaint about its delayed execution and to award him compensation for that delay.
THE LAW
The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No.1 of the non-enforcement of the judgment of the Moskovsky District Court of Kharkov of 5 July 2001 that awarded him disability pension arrears. He further complained of improper enforcement proceedings and the existence of statutory restrictions which stayed the enforcement of judgment in his favour.
Article 6 § 1 of the Convention provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1 provides as relevant:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest (...).”
The Court notes that the applicant’s complaints are in three parts that will be examined separately.
1. Non-enforcement of the judgment in the applicant’s favour
In their observations, the respondent Government maintained that the applicant could no longer claim to be a victim of the violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 since the judgment of 5 July 2001 had been fully executed. The applicant confirmed this in an undated letter received by the Court on 28 October 2002 and in his reply to the Government’s observations of 12 February 2003.
The Court recalls its case-law that if the applicant received redress at the domestic level for an alleged violation of the Convention he can no longer claim to be a “victim” of a violation by one of the Contracting States
In so far as the applicant complained of the non-enforcement by the Ukrainian authorities of the judgment of the Moskovsky District Court of Kharkov of 5 July 2001, the Court notes that this decision was fully executed in three instalments, the last being paid on 11 October 2002. This fact was not contested by the applicant. In these circumstances, the Court considers that the applicant can no longer claim to be a “victim”, within the meaning of Article 34 of the Convention, of a violation of the aforementioned rights originally invoked when lodging the application before the Court.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.
2. Statutory limitations on enforcement
The applicant alleged that the inadequate enforcement of the judgment in his favour was due to the operation of the Law “on the Introduction of a Moratorium on the Forced Sale of Property” (the “moratorium law”). These allegations were based on the information received from the State Bailiffs’ Service that referred to the law as a ground for staying the enforcement proceedings.
The Government maintained that the moratorium law did not impose an absolute ban on the enforcement of judgments against those debtors falling within its scope. The law did not prohibit the current assets of such debtors being used to enforce judgments. Moreover, the enforcement proceedings in the applicant’s favour continued after the moratorium law entered into force. The Government contended, therefore, that introduction of that law did not limit in any way the applicant’s right to the enforcement of the judgment of 5 July 2001.
The applicant did not respond to these arguments of the Government.
The Court observes that this part of the application primarily concerns the issue of the interpretation of the domestic law and its application by the State Bailiffs’ Service in the present case. The Court considers that this complaint should be considered within the context of the applicant’s allegations of inadequate enforcement proceedings below.
3. Inadequate enforcement proceedings
The Government submitted that the applicant did not challenge the actions or omissions of the bailiff before the domestic courts and, therefore, did not exhaust, as required by Article 35 § 1 of the Convention, the remedies available under Ukrainian law. The Government maintained that such remedies are effective both in theory and in practice.
The applicant did not contest this argument of the Government.
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see İlhan v. Turkey [GC], no. 22277/93, § 58, ECHR 2000-VII).
The Court notes that the Ukrainian legislation provides a possibility to challenge before the courts the lawfulness of the actions or omissions of the State Bailiffs’ Service in enforcement proceedings and to claim damages. In the present case, the applicant did not apply to any domestic court against the State Bailiffs’ Service to challenge the allegedly inadequate enforcement of the judgment in his favour. The Court recalls that the existence of mere doubts as to the prospects of success of a particular remedy, which is not obviously futile, is not a valid reason for failing to exhaust domestic remedies (see Vorobyeva v. Ukraine (dec.), no. 27517/02, dec. 17 December 2002). The applicant accordingly cannot be regarded as having exhausted all domestic remedies available to him under Ukrainian law. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa Registrar President
Full & Egal Universal Law Academy