FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29875/02
by Vladimir Georgiyevich ZAICHENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 22 January 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 16 July 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vladimir Georgiyevich Zaichenko, is a Ukrainian national who was born in 1956 and lives in Dnipropetrovsk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The proceedings concerning compensation for unlawful investigation
On 22 September 1998 criminal proceedings, instituted against the applicant on suspicion of tax evasion, were discontinued on exonerative grounds.
In December 1998 the applicant instituted proceedings in the Krasnogvardiysky District Court of Dnipropetrovsk (“the Krasnogvardiysky Court,” Красногвардійський районний суд м. Дніпропетровська) seeking compensation from the State budget for moral damage inflicted by the allegedly unlawful actions of the investigating authorities.
On 10 September 1999 the Krasnogvardiysky Court rejected the applicant’s claims as unsubstantiated. On 1 November 1999 the Dnipropetrovsk Regional Court (“the Regional Court,” Дніпропетровський обласний суд)[1] quashed this judgment and remitted the case for a fresh consideration.
On 2 February 2000 the Krasnogvardiysky Court awarded the applicant UAH 3,000[2] in moral damage without specifying the payer. This judgment was upheld by the Regional Court on 21 February 2000 and became final. The applicant unsuccessfully attempted to obtain a supervisory review of the two rulings, seeking higher compensation.
On 16 March 2000 the Dnipropetrovsk Regional Treasury (Управління державного казначейства у Дніпропетровській області) transferred the judgment of 2 February 2000 to the State Treasury (Державне казначейство України) for enforcement. The State Treasury did not pay the debt and requested the Prosecutors’ Office to lodge a supervisory review request (a protest) against the court rulings of 2 and 21 February 2000. On 14 September 2000 the Deputy Dnipropetrovsk Regional Prosecutor (Заступник прокурора Дніпропетровської області) lodged a protest with the Regional Court alleging that no compensation should have been awarded.
On 18 October 2000 the Presidium of the Regional Court dismissed the protest and upheld the previous two rulings. The Deputy Prosecutor General lodged a protest with the Supreme Court against all three court rulings.
In its final decision of 16 May 2001, the Supreme Court upheld the rulings at issue and amended the judgment of 2 February 2000 to specify that the debt was to be paid by the Zhovtnevy District Treasury of Dnipropetrovsk (“the Zhovtnevy Treasury,” Відділення Державного казначейства у Жовтневому районі м. Дніпропетровська). The applicant unsuccessfully attempted to lodge a cassation appeal against this final decision, seeking higher compensation.
On 12 July 2001 the Zhovtnevy District Bailiffs’ Service (“the Bailiffs,” Відділ Державної виконавчої служби Жовтневого районного управління юстиції в м. Дніпропетровську) initiated the enforcement proceedings in respect of the amended judgment of 2 February 2000.
On 5 October 2001 the Bailiffs imposed a fine on Ms G., the Head of the Zhovtnevy Treasury, for her failure to ensure the enforcement of the judgment in due time. Ms G. appealed to the Zhovtnevy District Court of Dnipropetrovsk (“the Zhovtnevy Court,” Жовтневий районний суд м. Дніпропетровська).
On 11 December 2001 the Zhovtnevy Court allowed Ms G.’s appeal, having found that the judgment had not been enforced on account of a failure in the statutory mechanism and the lack of budgetary allocations. The applicant’s appeal against this judgment was returned as “not lodged” in view of his failure to rectify its procedural shortcomings.
On 1 April 2002 the Bailiffs discontinued the enforcement proceedings on the ground that the collection of the debt was not possible. The applicant unsuccessfully attempted to institute criminal investigation into the non‑enforcement.
The judgment of 2 February 2000 remains unenforced to the present day.
B. Other proceedings
1. Proceedings against the Prosecutors’ Office
In March 2000 the applicant requested the Prosecutors’ Office to initiate criminal proceedings against the officials of the Krasnogvardiysky District Tax Inspectorate for their allegedly unlawful actions.
Unsatisfied with the Prosecutors’ Office’s alleged inaction, the applicant lodged an administrative complaint against it. On 18 June 2001 the Dnipropetrovsk Regional Court took a final decision not to initiate the administrative proceedings. Following the judicial reform of 2001 introducing a new cassation procedure, the applicant unsuccessfully attempted to obtain leave to appeal in cassation before the Supreme Court.
2. Proceedings against the Tax Inspectorate
In January 1999 the applicant instituted civil proceedings against the Krasnogvardiysky District Tax Inspectorate seeking moral damage for its allegedly unlawful actions. On 29 April 1999 the Zhovtnevy District Court rejected his claims. On 19 July 1999 the Dnipropetrovsk Regional Court upheld this judgment and it became final.
Following the judicial reform of 2001, the applicant appealed in cassation against the rulings of 29 April 1999 and 19 July 1999 before the Supreme Court. On 18 February 2002 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
3. Proceedings against the State Treasury and the Prosecutors’ Office
In October 2000 the applicant instituted civil proceedings against the State Treasury and the Dnipropetrovsk Regional Prosecutors’ Office alleging that they interfered with his right to obtain the debt under the judgment of 2 February 2000 and seeking compensation. The domestic courts rejected the applicant’s claims as unsubstantiated, the final judgment being given by the Supreme Court on 1 October 2001.
COMPLAINTS
The applicant complains under Article 6 § 1 about an unreasonable length of the proceedings concerning his compensation claim for unlawful investigation and the non-enforcement of the judgment of 2 February 2000. Additionally, he refers to Article 13 of the Convention in respect of the length of the proceedings and to Article 1 of Protocol No. 1 in respect of his non-enforcement complaint.
The applicant further complains that every domestic court, which considered his claims in each set of the proceedings, infringed his rights under Article 6 § 1 of the Convention by ignoring his interests, arguments and requests, disregarding domestic procedural norms and failing to award him adequate compensation for his sufferings.
The applicant further complains under Article 6 § 1 of the Convention about the authorities’ refusal to institute criminal investigation into the allegedly unlawful conduct of the State officials in his respect.
Finally, the applicant complains under Article 13 of the Convention that he had no effective remedies in respect of his complaints under Article 6 § 1 about the conduct of the domestic courts and his inability to institute criminal proceedings.
THE LAW
A. Complaints about the length of proceedings and about the non-enforcement of the judgment
The applicant complained that the length of the civil proceedings in respect of his claim for compensation of moral damage inflicted on him by the unlawful actions of the investigating authorities was incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention and that he had no effective domestic remedies for this complaint as required by Article 13 of the Convention. He further complained under Article 6 § 1 and Article 1 of Protocol No. 1 that the final judgment of 2 February 2000 given in his favour remained unenforced. The Convention provisions in question provide, insofar 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. ...”
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 considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. Remainder of the complaints
The applicant further complained about the unfair hearings, unlawful conduct and errors of the judicial authorities and about his inability to institute criminal proceedings into the alleged violations of his rights by the State agents.
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 §§1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 concerning the excessive length of the civil proceedings and the non‑enforcement of a final court judgment;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. Since July 2001 – the Dnipropetrovsk Regional Court of Appeal (Апеляційний суд Дніпропетровської області).
[2]. 563.34 euros.
Full & Egal Universal Law Academy