Communicated on 7 September 2020
Published on 28/09/20202
FIFTH SECTION
Application no. 36467/13
Mariya Andriyivna LYUSHNYA
against Ukraine
lodged on 23 May 2013
SUBJECT MATTER OF THE CASE
The application concerns compensation proceedings instituted by the applicant against the state bailiffs for their failure to enforce a judgment delivered in her favour.
On 4 December 2009 the Chuguyiv Court rejected the applicant’s claim against the bailiffs, which she lodged in August 2009 once the negligence of the bailiffs had been established by a court.
On 4 March 2010 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed that judgment and remitted the case for a fresh examination pointing, inter alia, to the first-instance court’s failure to involve the local department of the State Treasury as co-defendant in the case.
On 16 June 2010 the Supreme Court quashed the judgment of 4 March 2010 and remitted the case to the Court of Appeal for a new examination, finding that the Court of Appeal had no legal grounds to remit the case to the first-instance court as the latter had not ruled on the rights and obligations of the State Treasury and therefore had not infringed the rights of that body.
On 29 July 2010 the Court of Appeal quashed the judgment of the Chuguyiv Court of 4 December 2009 and awarded the applicant UAH 2,000 in compensation of non-pecuniary damage to be paid by the Bailiffs’ Service.
On 18 April 2012 the Higher Specialized Civil and Criminal Court (“the HSCU”), which examined the case as a new cassation court, quashed the judgment of 29 July 2010 and remitted the case for a fresh examination to the Chuguyiv Court. It found, inter alia, that the first-instance court had failed to establish all parties to the dispute and, in particular, to involve as co-defendant the relevant territorial department of the State Treasury which was the body in charge of making payments of behalf of the State.
On 15 August 2012 the Chuguyiv Court awarded the applicant UAH 5,000 as the compensation to be paid by the Chyguyiv department of the State Treasury, which the court had ex officio involved as co-defendant in the case.
On 31 October 2012 the Court of Appeal quashed the above judgment and rejected the applicant’s claim noting that the damage was to be paid by the State Treasury and not by its territorial department and that the applicant herself had not lodged a claim against the State Treasury. It also noted that the first-instance court did not inform the applicant of her right to request the replacement of a wrong defendant with an appropriate one.
On 3 December 2012 the HSCU rejected the applicant’s request for leave to appeal in cassation against the judgment of 31 October 2012.
Relying on Article 6 § 1 the applicant complains that the proceedings in her case were unfair.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Did the circumstances of the present case give raise to an infringement of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention?
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