FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20338/03
by Fedir Fedorovych SAVCHUR
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 8 July 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 7 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 Fedir Fedorovych Savchur, is a Ukrainian national who was born in 1956 and lives in Beregove. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Enforcement of the judgment given in the applicant’s favour
On 3 February 2000 the open joint-stock company Zakarpattyaoblenergo (“the company”, Берегівське РЕМ ВАТ ЕК „Закарпаттяобленерго”) found that the applicant had been using an electricity meter which had been damaged. Consequently his electricity bills were recalculated. On 11 October 2001 the company disconnected the applicant’s household electricity supply since the applicant had failed to pay the amount he owed because of the damaged meter.
On 8 November 2001 the applicant lodged a complaint with the Beregove Court (“the court”, Берегівський районний місцевий суд Закарпатської областi) against the company, requesting that his electricity supply be restored and that he receive a response to his request for information.
On 14 December 2001 the court partly dismissed the applicant’s claims and partly left them unexamined.
On 20 March 2002 the Zakarpattya Regional Court of Appeal (the “court of appeal” Апеляційний суд Закарпатської області) quashed the ruling of the first-instance court. The court of appeal ruled that the disconnection had been unlawful, since Ukrainian law did not allow cutting the electricity supply for the reasons given by the company. The court of appeal ordered that the applicant’s household be reconnected to the electricity supply and that a response be given to his request for information.
According to the applicant’s submissions, on 27 May 2002 he requested the court to provide him with the writ of execution in respect of the judgment of 20 March 2002, as the company had failed to execute it voluntarily within the time-limit prescribed by Ukrainian law.
On 4 June 2002 the company restored electricity to the applicant’s apartment. The Government provided this Court with a copy of the company’s letter of 27 June 2002 containing a reply to the applicant’s request for information.
On 10 June 2002 a judge of the court informed the applicant that a copy of the judgment at issue had already been transferred to the company for execution and that under Ukrainian legislation no writ of execution was necessary. It further informed the applicant that such a transfer was the only component of the mechanism provided for by the law to enforce the judgment at issue and was sufficient for that purpose.
In August 2002 the applicant instituted administrative proceedings in the court of appeal against the judge of the court, seeking to oblige him to provide the applicant with the writ of execution.
On 14 August 2002 the court of appeal refused to consider the applicant’s complaint, finding that the issuing of the writ of execution was within the realm of the judicial and not the administrative functions of the court and so could not be challenged in court.
On 29 January 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation against the decision of 14 August 2002.
2. The second disconnection of the applicant’s household electricity supply
On 4 June 2002 an officer of the company inspected the applicant’s household electricity supply installation. The officer found that the applicant had failed to sign the agreement on electricity supply with the company, he had no electricity meter, and his household electricity supply installation did not comply with technical standards as prescribed by Ukrainian law. On the same date a report containing a list of the shortcomings was drafted. The applicant was given one month to rectify them.
On 17 July 2002 an officer of the company inspected the applicant’s household electricity supply installation and found that he had failed to rectify the shortcomings. He was given additional time to rectify them, until 25 July 2002. As the applicant failed to rectify the shortcomings, the company disconnected the applicant’s household from the electricity supply in pursuance of paragraph 35 of the Rules on Use of Electricity by Residential Customers.
COMPLAINTS
The applicant complained that he had no electricity in his apartment since the judgment given in his favour had not been enforced. He further complained that he had no effective remedy in that respect since the domestic courts had refused to consider his complaint about the refusal to issue the enforcement writ in respect of the above judgment. He relied on Articles 6 § 1 and 13 of the Convention.
THE LAW
1. In reply to the Government’s observations the applicant made an additional complaint under Article 8 of the Convention, claiming that an officer of the company had entered his apartment and inspected his electricity supply installation without his consent. The Court notes that this complaint was not included in the original application, on which the Government have already commented. Accordingly, the Court does not find it necessary to examine it.
2. The applicant complained that the judgment of 20 March 2002 remained unenforced and that he had no effective remedy in that respect. He relied on Articles 6 §1 and 13 of 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 fair ... hearing ... by [a] ... tribunal...”
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.”
The Government maintained that this complaint should be rejected as incompatible ratione personae since the judgment of 20 March 2002 had been enforced and therefore the applicant could not be considered “a victim” of a violation of the Convention. They further maintained that the applicant had not challenged the second disconnection before the domestic courts.
The applicant disagreed. He alleged that the judgment remained unenforced.
The Court notes that, according to the materials in the case file, the power supply to the applicant’s household was restored on 4 June 2002. The Government also provided this Court with a copy of the company’s reply of 27 June 2002 to the applicant’s request for information. The enforcement proceedings lasted for three months, from 20 March 2002 till the end of June 2002. The Court considers that the period of three months was not so excessive as to raise an arguable claim under the relevant provisions of the Convention (see Krapyvnitsky v. Ukraine (dec.), no. 60858/00, 17 September 2002, and Kornilov and Others v. Ukraine (dec.), no. 36575/02, 7 October 2003).
The Court further notes that the second disconnection took place in July 2002 on different grounds from those of the first disconnection. The applicant was given more than one month to rectify the shortcomings. According to the materials in the Court’s possession he did not challenge the second disconnection before the domestic courts and therefore has failed to exhaust all domestic remedies available to him in that matter, which must be regarded as distinct from the earlier proceedings.
In so far as the applicant complained of a lack of an effective remedy, the Court reiterates that Article 13 does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim must be an arguable one (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. § 52). In the light of the above conclusions concerning the applicant’s complaints under Article 6 § 1, it should be noted that the applicant does not have any arguable claim of a breach of this provision which warrants a remedy under Article 13.
It follows that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Accordingly, the application of Article 29 § 3 of the Convention in the present case must be discontinued.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsPeer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy