FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21659/06
by Anatoliy Vladimirovich GAPEYEV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 17 November 2009 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar.
Having regard to the above application lodged on 22 April 2006,
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 Anatoliy Vladimirovich Gapeyev, is a Ukrainian national who was born in 1954 and lives in Sevastopil, Ukraine.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a former military officer.
In March 2005 he instituted proceedings in the court against his former employer, the Sevastopil Navy Institute (Севастопольський військово-морський інститут ім. П.С.Нахімова) claiming compensation for rations not received (стягнення грошової компенсації замість продовольчого пайка).
On 20 October 2005 the Gagarynskyy Local Court of Sevastopil awarded the applicant 2,958.56[1] Ukrainian hryvnias (UAH).
On 14 December 2005 the Sevastopil Court of Appeal upheld this judgment.
On 20 January 2007 the Bailiffs’ Service terminated the enforcement proceedings since the judgment had been enforced in full. The amount in question had been transferred to the applicant’s bank account but 1% of the amount was retained by the bank as a service fee. The applicant appealed against this decision as he disagreed with retention of the 1% of the amount.
On 29 August 2007 the first-instance court quashed the Bailiffs’ Service’s decision.
On 7 November 2007 the Higher Administrative Court of Ukraine quashed the judgment of 20 October 2005 and remitted the case for fresh consideration.
On 21 February 2008 the Sevastopil Court of Appeal quashed the decision of 29 August 2007. The applicant appealed in cassation and the proceedings are currently pending.
The parties did not furnish copies of the court decisions of 29 August 2007 and 21 February 2008.
On 25 June 2009 the Gagarinskyy District Court found that the case file in the applicant’s main case had been lost. The case was subsequently transferred for consideration to the Sevastopil Regional Administrative Court where the proceedings are currently pending. The applicant submitted that the decision of 25 June 2009 had been appealed against.
COMPLAINTS
The applicant complained under Article 1 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the judgment of 20 October 2005. He further complained under Article 13 of the Convention about the absence of an effective remedy in respect to these complaints.
The applicant further complained under Article 6 of the Convention that the decision of 25 June 2009 had been taken in his absence and in breach of the law in force. He also complained about the length of proceedings in his cases.
THE LAW
1. The applicant complained that the State authorities had failed to enforce the judgment of 20 October 2005 in time. He relied on Articles 1 and 13 of the Convention and Article 1 of Protocol No. 1. In the Court’s view, the applicant’s complaints are to be considered under Article 1 of Protocol No. 1, which provides, in so far as relevant, as follows:
Article 1 of Protocol No. 1
“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 Government submitted that no violation of Article 1 of Protocol No. 1 could be found separately from Article 6 § 1 of the Convention in cases concerning the lengthy non-enforcement of judgments in the applicants’ favour, because the finding of a violation of the former provision was based on conclusions regarding the latter. As the applicant did not complain and the Court did not of its own motion qualify the complaints under Article 6 § 1 of the Convention, no violation of this provision can be presumed to find a violation of Article 1 of Protocol No. 1 in the present case.
The Government further indicated that the judgment of 20 October 2005 had been quashed therefore the applicant could not claim anymore that this judgment had to be enforced. Moreover, on 20 January 2007 the enforcement proceedings in the applicant’s case were terminated and their length cannot be considered as excessive.
The Government also believed that the judgment in the applicant’s favour had been enforced in full. The 1% services payment was imposed on the applicant in accordance with an agreement concluded between the applicant and the bank, and the State could not be held responsible for that.
The applicant disagreed.
The Court reiterates that Article 1 of Protocol No. 1 is an independent provision, which application does not depend on whether or not other Articles of the Convention are invoked by the applicant. Moreover, it was found by the Court on numerous occasions that the impossibility for an applicant to obtain the execution of a judgment against State entity or enterprise in his or her favour constituted an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Voytenko v. Ukraine, no. 18966/02, § 53, 29 June 2004).
The Court notes that the judgment of 20 October 2005 became final on 14 December 2005. On 20 January 2007 the enforcement proceedings in the applicant’s case were terminated as the full amount of the judgment debt had been transferred by the applicant’s former employer. Such a delay of thirteen months cannot be regarded so excessive as to disclose any appearance of a breach of Article 1 of Protocol No. 1 (see Kornilov and Others v. Ukraine (dec.), no. 36575/02, 7 October 2003, and Andreyenko and Others v. Ukraine (dec.), no. 22312/03, 19 June 2007).
In any event, the Court notes that the decision to terminate the enforcement proceedings was quashed on 29 August 2007; appeal proceedings in this respect are still pending.
Moreover, the judgment of 20 October 2005 was also quashed on 7 November 2007 and the applicant’s main case remitted for fresh consideration, therefore there is no final judgment in the applicant’s favour for the time being
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained under Article 6 of the Convention that the decision of 25 June 2009 had been taken in his absence and in breach of the law in force. He also complained about the length of proceedings in his cases.
The Court notes that according to the applicant, the decision of 25 June 2009 has been appealed against and the proceedings are still pending. Therefore, the applicant’s complaints about alleged unfairness are premature.
As for the applicant’s complaints about the length of the court proceedings in his cases, the Court notes that currently the overall length of the court proceedings in the applicant’s case is four years and seven months (from March 2005 until now). Such a length of proceedings is not so excessive as to give rise to any appearance of the reasonable time requirement under Article 6 of the Convention.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1] At the material time around 489.63 euros (EUR).
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