FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48932/06
by Tamara Alekseyevna KRYUKOVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 November 2010 as a Committee composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 23 November 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, Ms Tamara Alekseyevna Kryukova, is a Ukrainian national who was born in 1945 and lives in Torez. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
In 2001 the State-owned company Torez ATP 11413 (“the company”) became a privately owned legal entity.
On 14 June 2004 the Torez Court ordered the company to pay the applicant 5,647.79 Ukrainian hryvnias (UAH)[1] in compensation for pecuniary and non-pecuniary damage caused to her health.
On 13 July 2004 the Donetsk Regional Commercial Court instituted insolvency proceedings against the company. On 20 December 2004 the same court included the applicant into the list of the company’s creditors.
On 26 July 2004 the Bailiffs instituted enforcement proceedings in the applicant’s case.
On 11 April 2005 the Donetsk Regional Commercial Court declared the debtor company insolvent and ordered commencement of the liquidation procedure.
On 11 May 2005 the Bailiffs terminated the enforcement proceedings and transferred the applicant’s execution writ to the debtor company’s liquidator.
The liquidation procedure is still pending and the judgment in the applicant’s favour remains unenforced due to the debtor company’s lack of funds.
COMPLAINT
The applicant complained referring to Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention about non-enforcement of the judgment of 14 June 2004 given by the Torez Court.
THE LAW
The Court, master of characterisation to be given in law to the facts of the case, considers that the applicant’s complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention which read, in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
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 Government submitted that the application was inadmissible for non-exhaustion of domestic remedies as the applicant had failed to challenge the Bailiffs’ inactivity before the domestic courts. In the Government’s view, from 26 July 2004 to 11 May 2005 the Bailiffs took all necessary steps to enforce the judgment in question, while after 25 May 2005 the State authorities were no longer responsible for the enforcement. The Government submitted that the lengthy non-enforcement of the judgment was justified by the poor economic situation of the debtor company. They also submitted that they were not responsible for the lack of funds of the private company.
The applicant disagreed. She submitted that the company’s liquidator was appointed and controlled by a national court and thus the State was responsible for the non-enforcement of the judgment.
The Court notes, referring to its constant case-law under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, that the State cannot be held responsible for financial debts of a private legal entity and the State’s responsibility for enforcement of a judgment against a private company extends no further then the involvement of State bodies, including the domestic courts, in the enforcement proceedings (see, for instance, Mihăilescu v. Romania (dec.), no. 47748/99, 26 August 2003; Reynbakh v. Russia, no. 23405/03, §§ 18-19, 29 September 2005 and Fuklev v. Ukraine, no. 71186/01, § 67, 7 June 2005). The Court also notes that the debtor company’s liquidator was not a “governmental organisation” within the meaning of Article 34 of the Convention (see Katsyuk v. Ukraine, no. 58928/00, §§ 38-48, 5 April 2005). The applicant’s complaints must, therefore, be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3.
It follows that the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsRait Maruste
Deputy RegistrarPresident
[1]. About 858 euros (EUR).
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