FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20324/03
by Ivan Ivanovich NOVITSKIY
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 October 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 11 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, Mr Ivan Ivanovich Novitskiy, is a Ukrainian national who was born in 1939 and lives in Dniprodzerzhynsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
On 4 August 2000 and 14 February 2003 the Bagliysky District Court of Dniprodzerzhynsk (Баглійський районний суд м. Дніпродзержинськ) ordered the “Dniprodzerzhynsklift”, a private company, to pay the applicant 5,454.71 hryvnyas (UAH)[1] and UAH 2,200[2] respectively in salary arrears and other payments. These judgments became final and the enforcement writs were transferred to the Zavodsky District Bailiffs’ Service (“the Bailiffs,” Відділ Державної виконавчої служби Заводського районного управління юстиції в м. Дніпродзержинську) for enforcement.
Subsequently the Bailiffs returned the writs unenforced referring to the fact that the debtor-company lacked convertible assets.
On 3 July 2006 the Dnipropetrovsk Commercial Court (Господарський суд Дніпропетровської області) declared the debtor-company bankrupt and ordered its liquidation.
In February 2007 the applicant instituted proceedings against the Bailiffs challenging their alleged inactivity in collecting his judgments debts. On 13 March 2007 the Bagliysky Court dismissed his claims, having found no lack of diligence in the Bailiffs’ conduct. The applicant did not inform the Court whether he had lodged an appeal against this judgment.
The judgments of 4 August 2000 and 14 February 2003 given in the applicant’s favour remain unenforced to the present day.
COMPLAINTS
The applicant complained about the State authorities’ failure to enforce the judgments of 4 August 2000 and 14 February 2003 in due time. He referred to Article 1 of Protocol No. 1 and Article 13 of the Convention.
The applicant also invoked Article 4 § 1 of the Convention, complaining that he had to work without remuneration.
THE LAW
I. SCOPE OF THE CASE
The Court observes that, after the communication of the case to the respondent Government, the applicant introduced a complaint under Article 13 of the Convention about his inability to obtain an award against the Bailiffs.
The Court finds that this complaint is not an elaboration of the original complaints on which the parties have commented. The Court considers, therefore, that it is not appropriate to deal with this matter in the present case.
II. AS TO THE CIRCUMSTANCES OF THE CASE
1. Relying on Article 13 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the lengthy non‑enforcement of the judgments given in his favour. These provisions read, insofar as relevant, as follows:
Article 13
Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
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 ...”
The Court finds that the applicant’s complaint about the lengthy non‑enforcement of the judgments given in his favour also requires examination under Article 6 § 1 of the Convention which reads 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. ...”
In their observations, the respondent Government submitted that the State was not responsible for the delay in the enforcement of the judgments at issue, as it had happened on account of a private company’s lack of funds.
They further maintained that, even assuming that the Bailiffs had failed to act with due diligence in collecting the debts, the applicant had not exhausted domestic remedies in searching compensation for their alleged omissions.
The applicant disagreed. He maintained that the State was responsible for collecting the debts, regardless of whether it owned the debtor-company.
The Court reiterates that the State cannot be considered responsible for the lack of funds of a private company and its responsibility extends no further than the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002).
The Court further recalls that the Ukrainian legislation provides for a possibility to challenge before the courts the lawfulness of actions and omissions of the Bailiffs in enforcement proceedings against private debtors and to claim damages from them 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 has not shown that he appealed against the judgment of 13 March 2007. Therefore, he cannot claim to have exhausted domestic remedies.
2. The applicant next complained about a violation of Article 4 § 1 of the Convention, referring to the fact that he had been forced to work without receiving remuneration. The Court notes that the applicant performed his work voluntarily and his entitlement to payment has never been denied. The dispute thus involves civil rights and obligations, but does not disclose any element of slavery or forced or compulsory labour within the meaning of this provision (Karpenko v. Ukraine, no. 10559/03, § 15, 10 August 2006).
3. In these circumstances, 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 1,127.16.
[2]. EUR 376.31.
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