FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 23664/03
by Olga Ivanovna KOVALYOVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 20 November 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 18 June 2003,
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 Olga Ivanovna Kovalyova, is a Ukrainian national who was born in 1940 and lives in the city of Zaporizhzhya. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The applicant is a former employee (merchandise expert) of the Mariupol Military Trade Centre (Маріупольський торговий відділ Воєнторгу).
On 27 October 1998 the Khortytsky District Court of Zaporizhzhya (“the District Court”) ordered the Military Trade Department of the Southern Combat Operations Centre situated in Odessa (“the Military Trade Department”; Управління воєнної торгівлі Південного оперативного командування м. Одеса) to pay the applicant UAH 3,584[1] in salary arrears. The decision became final and binding on 6 November 1998.
On 27 October 1998 the Bailiffs’ Office of the Prymorsky District of Odessa instituted the enforcement proceedings.
The judgment at issue was not enforced in due time because of the lack of debtor’s funds.
During June 1999 – July 2001 the major part of the debt was transferred to the applicant’s bank account.
The judgment of 27 October 1998 was enforced in full on 1 November 2001.
In February 2002 the applicant instituted proceedings against the Military Trade Department seeking to receive compensation for delay in the enforcement of the judgment given in her favour and for loss of value of the initial award.
On 4 June 2002 the District Court found no fault by the respondent and rejected the applicant’s claim.
On 5 September 2002 and 20 March 2003 the Zaporizhzhya Regional Court of Appeal and the Supreme Court, respectively, upheld this decision.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the judgment of 27 October 1998 was not enforced for a lengthy period of time. She also complained under the same provision about the unfairness and outcome of the proceedings upon her claim for additional compensation.
THE LAW
1. The applicant complained about the lengthy non-enforcement of the judgment of 27 October 1998 given in her favour. She invoked Article 6 § 1 of the Convention, which reads, in so far as relevant, 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. ...”
The Government submitted that the applicant had not exhausted the remedies available to her under the domestic law as she had not challenged before the domestic courts the failure of the Bailiffs to enforce the judgment in due time.
The Court recalls that it has already dismissed the Government’s similar contentions in the cases in which the enforcement of judgments against State bodies was prevented because of the failure of the State to take any measures, rather than by a Bailiff’s misconduct (see, for instance, Voytenko v. Ukraine, no. 18966/02, § 30-31, 29 June 2004).
However, the Court recalls that in accordance with Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the date of the final domestic decision, which rule may not be set aside solely because a Government have not raised the relevant objection (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I). The Court further recalls that where no domestic remedy is available, the six-month period runs from the act alleged to constitute a violation of the Convention and where it concerns a continuing situation, it runs from the end of the situation concerned (see e.g., Antonenkov and Others v. Ukraine, no. 14183/02, § 32, 22 November 2005).
In the case at issue, the judgment given in the applicant’s favour had been enforced in November 2001, while the application was lodged only twenty months later, on 18 June 2003. Having regard to the case-law quoted above, the applicant could not await the outcome of the compensation proceedings initiated in February 2002 before lodging her application with the Court. Consequently, the applicant’s complaint must be rejected for having been lodged out of time.
2. The applicant further complained about the unfairness and outcome of the proceedings upon her additional claim for compensation.
Having carefully examined the applicant’s submissions in the light of all the material in its possession and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. 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]. EUR 773.64.
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