FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29925/04
by Valeriy Anatolyevich GNITZEVICH
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 13 November 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 31 July 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Valeriy Anatolyevich Gnitzevich, is a Ukrainian national who was born in 1956 and lives in the city of Donetsk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The non-enforcement of the judgment given in the applicant’s favour
On 4 July 1997 the Kyivsky District Court of Donetsk (“the District Court”) fined the applicant with UAH 350 for corruption in the course of his duties. On 17 December 1997 the President of the Donetsk Regional Court quashed this decision and terminated the proceedings against the applicant as time-barred.
On 5 May 2000 the District Court awarded the applicant against the State Treasury of the Kyivsky District of Donetsk UAH 500 in compensation for moral damage caused by his conviction. The decision was upheld on 5 June 2000 by the Donetsk Regional Court.
On 30 June 2000 the Bailiffs of the Kyivsky District of Donetsk (“the Bailiffs”) instituted enforcement proceedings and transferred the writ of execution to the Office of the State Treasury in the Kyivsky District of Donetsk (“the Office”).
On 6 June 2001 the District Court rectified its judgment of 5 May 2000 specifying that the applicant was to be paid UAH 500 from the State Budget through the Office.
On 26 June 2001 the writ of execution was sent to the Office, which transferred it to the Department of the State Treasury of the Donetsk Region.
According to the applicant, the officials of the State Treasury informed him that the judgment debt could not be paid as the State Budget did not allocate the funds for this purpose.
On 30 May 2003 the District Court rejected the applicant’s request to modify the manner for enforcement of the judgment of 5 May 2000 and to increase the amount of the compensation. The applicant was informed that he should address his request to the Bailiffs.
On 11 May 2004 the Bailiffs informed the applicant that enforcement of judgments against the State Treasury fell outside their competence.
In November 2004 the Donetsk Department of Justice (“the Department”) transferred the writ of execution to the Bailiffs of the Pechersky District Court of Kyiv, who on 7 December 2004 refused to institute enforcement proceedings as it fell outside its competence.
On 25 December 2004 the writ of execution was transferred to the Enforcement Department of the Ministry of Justice, which on 25 January 2005 refused to institute enforcement proceedings and transferred the writ of execution to the Department.
On 11 February 2005 the Department refused to institute enforcement proceedings and returned the writ of execution to the applicant as it had expired on 5 June 2003.
On 20 May 2005 the District Court ordered a new writ of execution to be sent to the Department.
On 20 June 2005 the Department opened enforcement proceedings.
The judgment of 5 May 2000 remains unenforced.
B. Other proceedings
On 9 July 1997 the applicant was dismissed from his position of deputy head of the logistics unit of the Tax Administration of Donetsk Region (“the Tax Administration”) on the basis of the decision of the District Court of 4 July 1997.
In August 1997 the applicant instituted proceedings against the Tax Administration seeking reinstatement and salary arrears. The final judgment in the case was given by the Donetsk Regional Court on 14 September 1998.
In April 1999 the applicant instituted proceedings against the Tax Administration for a civil service pension. The final judgment in the case was given by the Donetsk Regional Court on 25 October 1999.
In April 1999 the applicant instituted proceedings against the Tax Administration seeking compensation for moral damage. The final judgment in this case was given by the Donetsk Regional Court on 25 October 1999.
In June 2000 the applicant lodged with the District Court a claim against the Tax Administration for a declaration that he should not have been subjected to an administrative sanction. On 16 February 2001 the District Court declined to consider the applicant’s claim for failure to comply with the formalities. On 12 March 2001 the Donetsk Regional Court upheld this ruling. On 31 January 2005 the Supreme Court rejected the applicant’s cassation appeal lodged under the new cassation procedure.
In November 2002 the applicant instituted proceedings against the Tax Administration seeking his reinstatement and salary arrears. On 30 April 2003 the District Court found against the applicant. On 23 December 2003 and 23 July 2004 the Donetsk Regional Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld this decision.
In August 2002 the applicant instituted proceedings against the Tax Administration seeking to modify the reasons for and the date of his dismissal. On 25 May 2004 the District Court found against the applicant. On 19 August 2004 the Court of Appeal upheld this decision. On 18 July 2007 the Collegium of the Kyiv City Court of Appeal rejected the applicant’s cassation appeal.
In November 2003 the applicant lodged with the District Court a claim for rehabilitation. On 20 December 2004 the District Court found against the applicant. On 28 March 2005 the Court of Appeal upheld this decision.
In April 2004 the applicant instituted proceedings against the Tax Administration seeking to find unlawful the order on his dismissal. On 3 August 2004 the District Court found against the applicant. On 25 October 2004 and 26 July 2006 the Court of Appeal and the Higher Administrative Court, respectively, upheld this decision. On 29 October 2006 the Supreme Court rejected the applicant’s request to review the case under the extraordinary procedure.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgment of 5 May 2000.
The applicant also complained under Article 6 § 1 about the unfairness and outcome of the proceedings instituted by him between 1997 and 2004. Additionally, the applicant complained under the same provision about the unreasonable length of the proceedings which began in August 2002 and which concerned a request for modification of the reasons for and date of his dismissal. He further complained under Articles 6 § 2 and 13 of the Convention about the refusal of the domestic authorities to rehabilitate him. Finally, the applicant complained that the failure to pay him the compensation awarded on 5 May 2000 was in breach of Article 3 of Protocol No. 7.
THE LAW
A. The non-enforcement of the judgment given in the applicant’s favour
The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgment of 5 May 2000. The Articles invoked, in so far as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”
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 or to secure the payment of taxes or other contributions or penalties.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of were within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the non-enforcement of the judgment given in his favour, and
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy