FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26291/02
by Lyudmila Zakirovna GLAVCHEVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 3 July 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 June 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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, Ms Lyudmila Zakirovna Glavcheva, is a Ukrainian national who was born in 1951 and lives in the town of Gorlovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unidentified date the applicant instituted proceedings in the Mykytivskyy District Court of Gorlovka against her employer, the “Donbasvuglezbagachennya” private joint stock company (ТОВ «Донбасвуглезбагачення»), claiming salary arrears.
On 24 July 2000 the court found for the applicant and awarded her 5,306.73[1] Ukrainian hryvnas.
In August 2000 the Mykytivskiy District Bailiffs’ Service instituted enforcement proceedings.
On 3 April 2001 by the decision of the Donetsk Regional Commercial Court the debtor was declared bankrupt. The writs of enforcement have been transferred to the liquidation commission. The judgement of 24 July 2000, however, has never been enforced.
COMPLAINTS
The applicant complained, invoking Article 13 of the Convention, about the failure of the domestic authorities to enforce the judgment of 24 July 2000 given in her favour. She also referred to Article 1 of Protocol No. 1.
THE LAW
In their observations, the respondent Government submitted that the State was not responsible for the delay in the enforcement of the judgment debt of the Mykytivskyy District Court of Gorlovka of 24 July 2000, which was caused due to the lack of funds of a private company.
They further maintained that the applicant had not challenged the alleged inactivity of the Bailiffs’ Service and had not claimed relevant compensation before the domestic courts. The Government therefore contended that the applicant had not exhausted, as required by Article 35 § 1 of the Convention, the remedies available to her under Ukrainian law. The Government maintained that such remedies were effective both in theory and in practice.
The applicant disagreed and submitted that the State had failed to secure her rights.
The Court agrees with the Government that the State cannot be considered responsible for the lack of funds of a private company and its responsibility extends no further then the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002).
The Court recalls that, as it has already held in similar cases, the Ukrainian legislation provides for a possibility to challenge before the courts the lawfulness of actions and omissions of the State Bailiffs’ Service in enforcement proceedings and to claim damages from that Service for the delays in payment of the awarded amount (see, for instance, Kukta v. Ukraine (dec.), no. 19443/03, 22 November 2005). In the present case, the applicant failed to do so and, accordingly, cannot be regarded as having exhausted the domestic remedies available to her under Ukrainian law.
It follows that the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1] At the material time around 1,041.79 euros
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