. On
9 September 2004 the Court decided to communicate the applications to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES
OF THE CASES
. The
first applicant was born in 1954, the second applicant in 1971 and
the fourth applicant in 1963. The first, second and fourth applicants
are judges who live in Kirovograd. The third applicant, a retired
judge, was born in 1942 and currently lives in Gayvoron in the
Kirovograd region.
A. The first
applicant (Mr Zubko)
. In
November 2002 the first applicant lodged complaints with the
Pechersky District Court of Kyiv (“the Pechersky District
Court”) against the Ministry of Finance and the State Treasury,
seeking payment of salary arrears, life-term judicial benefits and
compensation for delays in their payment.
. On
16 December 2002 the district court allowed the applicant's claims.
It ordered the Ministry of Finance and the State Treasury to pay the
applicant 5,807.26 Ukrainian hryvnas
(UAH) in compensation.
. On
9 July 2003 the Kyiv City Court of Appeal (“the Court of
Appeal”) upheld this judgment and it became final.
. On
11 August 2003 the Pechersky District Bailiffs' Service (“the
PBS”) decided not to initiate enforcement proceedings in the
case and informed the applicant that he should lodge the execution
writs with the State Treasury.
. On
22 September 2003 the State Treasury declined to enforce the judgment
owing to a lack of budgetary funds, and stated that responsibility
for enforcement lay with the State Judicial Administration.
. On
6 November 2004 the applicant received the sum due to him under the
judgment of 16 December 2002 (payment order no. 163). (The
enforcement proceedings lasted from July 2003 to November 2004, that
is, for about one year and four months.)
B. The second
applicant (Ms Oleksiyenko)
. In
November 2002 the applicant lodged complaints with the Pechersky
District Court against the Ministry of Finance and the State
Treasury, seeking payment of salary arrears, life-term judicial
benefits and compensation for delays in their payment.
. On
16 December 2002 the district court allowed the applicant's claims.
It ordered the Ministry of Finance and the State Treasury to pay the
applicant UAH 10,291.61
in compensation.
. On
9 July 2003 the Court of Appeal upheld this judgment and it became
final.
. On
11 August 2003 the PBS decided not to initiate enforcement
proceedings in the case and informed the applicant that she should
lodge the execution writs with the State Treasury.
. On
5 February 2004 the State Treasury returned the writs of execution in
respect of the judgment of 16 December 2002, which remained
unenforced owing to a lack of funds in the State budget.
. On
15 November 2004 the applicant received the sum due to her (payment
order no. 173). (The enforcement proceedings lasted from July 2003 to
November 2004, that is, for about one year and four months.)
C. The third
applicant (Mr Yankul)
. On
22 March 2000 the third applicant retired, following a decision
of the Verkhovna Rada to dismiss him.
. In
November 2001 the applicant lodged complaints with the Pechersky
District Court against the Ministry of Finance and the State
Treasury, seeking payment of salary arrears, life-term judicial
benefits and compensation for delays in their payment.
. On
14 January 2002 the Pechersky District Court allowed the applicant's
claims. It ordered the Ministry of Finance and the State Treasury to
pay the applicant UAH 4,822
in compensation.
. On
8 May 2002 the Court of Appeal upheld this judgment and it became
final.
. On
21 May 2003 the State Treasury declined to enforce the judgment owing
to a lack of budgetary funds.
. On
8 September 2003 the Kyiv City Department of Justice informed the
applicant that the judgment could not be enforced owing to a lack of
funds in the State budget for such expenditure.
. On
8 September 2003 the Deputy Head of the State Judicial Administration
informed the applicant that the judicial administration was not
liable for payment of debts that had been incurred before it had been
established.
. On
22 December 2003 the PBS returned the writ of execution to the
applicant on the ground that there were no funds in the budget of the
State Treasury for the enforcement of such judgments.
. On
6 November 2004 the applicant received the sum awarded to him by the
judgment of 14 January 2002 (payment order no. 163).
. On
30 November 2004 the applicant received the sum due to him in the
form of a payment order (no. 3698) to his bank account). (The
enforcement proceedings lasted from May 2002 to November 2004, that
is, for about two years and six months.)
D. The fourth
applicant (Mr Remez)
. In
November 2002 the fourth applicant lodged complaints with the
Pechersky District Court against the Ministry of Finance and the
State Treasury, seeking payment of salary arrears, life-term judicial
benefits and compensation for delays in their payment.
. On
16 December 2002 the district court allowed the applicant's claims.
It ordered the Ministry of Finance and the State Treasury to pay the
applicant UAH 5,978.34
in compensation.
. On
9 July 2003 the Court of Appeal upheld this judgment and it became
final.
. On
11 August 2003 the PBS decided not to initiate enforcement
proceedings in the case and informed the applicant that he should
lodge the writs with the State Treasury.
. In
October 2003 the applicant lodged the writs of execution with the
State Treasury. On 10 November 2003 the State Treasury declined to
enforce the judgment owing to a lack of budgetary funds, and stated
that responsibility for enforcement lay with the State Judicial
Administration.
. On
6 November 2004 the applicant received the sum due to him (payment
order no. 163). (The enforcement proceedings lasted from July 2003 to
November 2004, that is, for about one year and four months.)
II. RELEVANT DOMESTIC
AND INTERNATIONAL LAW AND PRACTICE
A. The Constitution
of Ukraine
. The
relevant provisions of the Constitution of Ukraine read as follows:
Article 95
“All
expenditure by the State for social purposes, and the amounts and
aims thereof, shall be determined by the State Budget Act.”
Article 43
“Everyone
shall have the right to work, including the possibility to earn his
or her living by labour which he or she freely chooses or to which he
or she freely agrees.
... The right to
timely payment for work shall be protected by law.”
Article 126
“The
independence and immunity of judges shall be guaranteed by the
Constitution and the laws of Ukraine.
... Influencing
judges in any manner shall be prohibited.”
Article 127
“Justice shall
be administered by professional judges and, in cases determined by
law, by lay assessors and jurors.
Professional judges
shall not belong to political parties or trade unions, take part in
any political activity, hold a representative mandate, occupy any
other paid position or perform other remunerated work except in the
academic, teaching and creative spheres. ...”
Article 129
“In the
administration of justice, judges shall be independent and subject
only to the law.”
Article 130
“The State
shall ensure the funding and proper conditions for the operation of
the courts and the activity of judges. Expenditure for the
maintenance of the courts shall be allocated separately in the State
budget of Ukraine. ...”
B. The Judiciary
Act of 1 June 2002
. Section
123 of the Judiciary Act provides that judges' salaries and
social-security benefits shall be such as to ensure their financial
independence and shall be determined in accordance with the Status of
Judges Act. The amount of a judicial salary cannot be reduced.
C. The Budgetary
Code of 21 June 2001
. The
relevant provisions of the Budgetary Code read as follows
(Law no. 2542):
Article 7
“... Budgetary
funds shall be spent for the purposes determined by budgetary
allocations only...”
Article 23
“...Budget
commitments can be undertaken and payments from the State budget made
only in so far as budgetary allocations exist for these purposes.”
D. The 2003 State
Budget Act (Law no. 380-IV of 26 December 2002)
. The
State Budget Act provides that the writing-off of funds from the
State budget pursuant to a court judgment delivered in favour of the
employees of an organisation in receipt of budgetary funds, who are
entitled to certain benefits, shall be carried out from the single
treasury account of the State Treasury at the expense and within the
limits of the budget allocations fixed for financing that
organisation.
E. Law no. 1801-IV
of 17 June 2004 amending the 2004 State Budget Act
. The
State budget provided UAH 1,067,200
for the enforcement of judgments awarding judicial salaries and
benefit arrears.
F. Law amending the
Enforcement Proceedings Act (Law no. 606 XIV of
21 April 1999)
. Section
20-1 of the Law provides that the bailiffs' departments of the
Ministry of Justice shall be responsible for the enforcement of
judgments concerning the debts of the executive branch of Government.
G. Regulations on
the State Judicial Administration (Presidential Decree No. 182 of
3 March 2003)
. The
Decree provides that the State Judicial Administration shall be
responsible for organising the financial planning and accounting of
the courts and for preparing an estimate of the courts' budgetary
needs.
H. Regulations on
the State Treasury (as approved by Resolution no. 590 of the
Cabinet of Ministers of 31 July 1995)
. In
accordance with section 4 of the Regulations, the State Treasury is
responsible for the implementation of the State budget and for
monitoring its expenditure.
I. Recommendation
of the Committee of Ministers R (94) 12 on the Independence,
Efficiency and Role of Judges (adopted
by the Committee of Ministers on 13 October 1994 at the 518th meeting
of the Ministers' Deputies), and the Explanatory Memorandum thereto
. The
relevant extracts from the Recommendation read as follows:
“Principle
III - Proper working conditions
1. Proper
conditions should be provided to enable judges to work efficiently
and, in particular, by:
...
b. ensuring
that the status and remuneration of judges is commensurate with the
dignity of their profession and burden of responsibilities; ...”
. The
relevant extracts from the Explanatory Memorandum read as follows:
“29. Status
and remuneration are important factors determining appropriate
working conditions (see paragraph 1.b). The status accorded to judges
should be commensurate with the dignity of their profession and their
remuneration should represent sufficient compensation for their
burden of responsibilities. These factors are essential to the
independence of judges, especially the recognition of the importance
of their role as judges, expressed in terms of due respect and
adequate financial remuneration.
30. Paragraph
1.b is closely bound up with the reference in Principle I to all
decisions concerning the professional life of judges, which obviously
includes their status and their remuneration.”
J. European
Charter on the Statute for Judges (Department of Legal Affairs of the
Council of Europe Document (98)23)
. The
relevant extracts from Chapter 6 of the European Charter on the
Statute for Judges, “Remuneration and Social Welfare”,
read as follows:
“6.1. Judges
exercising judicial functions in a professional capacity are entitled
to remuneration, the level of which is fixed so as to shield them
from pressures aimed at influencing their decisions and more
generally their behaviour within their jurisdiction, thereby
impairing their independence and impartiality.”
THE LAW
I. JOINDER OF THE
APPLICATIONS
. The
Court considers that the applications should be joined in accordance
with Rule 42 § 1 of the Rules of Court, given their common
factual and legal background.
II. ADMISSIBILITY
A. The applicants'
complaints
. The
first, second and fourth applicants complained about the lengthy
non-enforcement of the judgments of the Pechersky District Court of
Kyiv of 16 December 2002. The third applicant complained about
the lengthy non-enforcement of the judgment of the Pechersky District
Court of Kyiv of 14 January 2002. In their submissions they
relied on Article 6 § 1 of the Convention, which reads as
follows:
“In the
determination of his civil rights and obligations ..., everyone is
entitled to a fair ... hearing ... by [a] ... tribunal...”
. The applicants
further complained that the State had infringed their right to the
peaceful enjoyment of their possessions, as guaranteed by Article 1
of Protocol No. 1, which provides:
“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
second applicant complained that she had had no effective remedy in
respect of her complaints under Article 6 § 1 of the Convention
concerning the length of non-enforcement of the judgment given in her
favour, in breach of Article 13, which reads as follows:
“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.”
B. The Government's
preliminary objections in respect of all the applications as to the
exhaustion of domestic remedies and admissibility ratione personae
. The
Government alleged that the applicants had failed to exhaust domestic
remedies, as they had not lodged applications with the domestic
courts challenging the inactivity of the State Treasury and the State
Judicial Administration or claiming compensation for improper
enforcement proceedings or for the devaluation of the amounts
awarded. They further alleged that, as the judgments had been
enforced, the applicants were no longer victims of the violation
claimed.
. The
applicants contested these arguments.
. The
Court notes that it has considered and rejected the Government's
similar objections on a number of occasions (see Romashov
v. Ukraine, no. 67534/01, §§ 27 and 32, 27
July 2004). The Court finds no reason to depart from its previous
case-law, and accordingly dismisses these objections.
C. Applicability of
Article 6 § 1 to the complaints lodged by the first, second and
fourth applicants concerning non-enforcement of the final judgments
of 16 December 2002
. The
Government submitted that Article 6 § 1 of the Convention was
not applicable to the enforcement proceedings involving the first,
second and fourth applicants, since it did not apply to disputes
between public officials and the State. They further contended that
the dispute concerned issues of public law and did not fall within
the scope of civil rights and obligations.
. The
applicants disagreed.
. The
Court notes that the judiciary, while not being part of the ordinary
civil service, is nonetheless part of the public service. A judge has
specific responsibilities in the field of the administration of
justice, a sphere in which States exercise sovereign powers.
Consequently, the judge participates directly in the exercise of
powers conferred by public law and performs duties designed to
safeguard the general interests of the State (see Pitkevich v.
Russia (dec.), no. 47936/99, 8 February 2001).
. The
Court further reiterates that disputes between administrative
authorities and employees who occupy posts involving participation in
the exercise of powers conferred by public law do not attract the
guarantees of Article 6 § 1 (see Pellegrin v. France
[GC], no. 28541/95, §§ 64-67, ECHR 1999-VIII).
In these circumstances, the Court considers that Article 6 of the
Convention is not applicable in the instant case to the dispute over
the payment of arrears in judicial benefits between the applicants
concerned, who are serving judges, and the Ukrainian State.
Accordingly, Article 6 § 1 of the Convention does not apply to
the cases brought by the first, second and fourth applicants.
. It
follows that this part of the applicants' complaints is incompatible
ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
D. Admissibility of
the complaint under Article 6 § 1 of the
Convention in relation to the third applicant
. The
Court notes that the parties raised no objection as to the
applicability of Article 6 § 1 of the Convention in relation to
the enforcement of a judgment given in favour of a retired judge.
Nevertheless, the Court reiterates its reasoning in previous, similar
cases against Ukraine, where it found that Article 6 § 1
under its civil head was applicable to the judicial proceedings
between a retired civil servant and his or her former employer when a
dispute concerned outstanding financial obligations after retirement
(see Svintitskiy and Others v. Ukraine (dec.), no. 59312/00,
18 January 2005).
. Accordingly,
the Court finds that Article 6 § 1 applies to the
complaint concerning non-enforcement of the final judgment in the
third applicant's favour. No other reason for declaring it
inadmissible has been established.
E. Admissibility of
the complaints brought by all the applicants under Article 1 of
Protocol No. 1 to the Convention
. For
the reasons set forth above concerning Article 6 § 1 of the
Convention (paragraphs 48-50), the Court dismisses the Government's
objection that this part of the application is inadmissible on
grounds of non exhaustion of domestic remedies and lack of
victim status. Furthermore, it notes that the Government did not
raise any other objections to the admissibility of the applicants'
complaints under Article 1 of Protocol No. 1. Consequently,
the Court finds that these complaints are not manifestly ill-founded
or indeed inadmissible on any other ground cited in Article 35
of the Convention. They must therefore be declared admissible.
F. Admissibility of
the complaint brought by the second applicant under Article 13 of the
Convention
. As
to the applicant's complaint under Article 13 of the Convention in
respect of the alleged breach of Article 6 § 1, the Court,
having already found that Article 6 § 1 of the Convention
does not apply in the present case (see paragraphs 51-55 above),
reaches the same conclusion with respect to Article 13 (see
Balmer-Schafroth and Others v. Switzerland, judgment of
26 August 1997, Reports of Judgments and Decisions
1997 IV, § 42). It follows that the second applicant's
complaint under Article 13 of the Convention in respect of the
alleged breach of Article 6 § 1 is incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3, and must be rejected in accordance with
Article 35 § 4.
III. MERITS
A. Alleged
violation of Article 6 § 1 of the Convention in the third
applicant's case
. The
Government contended that the delay in enforcement of the judgment
given in the third applicant's favour had been due to the complexity
of the enforcement proceedings, the lack of funds in the State budget
and the technical errors committed by the domestic courts. (In
particular, they mentioned that the defendant cited in the execution
writs had been incorrect, that is to say, it should have been
the State Treasury Department and not the Ministry of Finance.)
. The
applicant disagreed.
. The
Court notes that the non-payment of the judgment debt was due to the
failure of the State to make provision for the appropriate
expenditure in the State budget. However, by failing for two years
and six months to take the necessary steps to comply with the final
judicial decision in the present case, the Ukrainian authorities
deprived the provisions of Article 6 § 1 of much
of their useful effect (see Shmalko v. Ukraine, no. 60750/00,
§§ 43-47, 20 July 2004). Accordingly, the Court
concludes that there has been a violation of Article 6 §
1 of the Convention.
B. Alleged
violation of Article 1 of Protocol No. 1 to the Convention in all the
present applications
1. Submissions of
the parties
. The
Government in their submissions disputed the assertion that the
awards made by the domestic courts to the applicants constituted
possessions within the meaning of Article 1 of Protocol No. 1, as
they concerned payments for judicial benefits provided by the State.
They further alleged that the claims in respect of the arrears
granted did not even amount to legitimate expectations, as they had
been directed against the wrong institution – the Ministry
of Finance instead of the State Judicial Administration. The
Government further referred to the difficult financial situation of
the State (see Raimondo v. Italy, judgment of 22 February
1994, Series A no. 281 A, §§ 27 and 30) and
the technical complications encountered in the course of the
enforcement proceedings. Moreover, they contended that the State had
taken active steps to solve the problem, as it had made a budgetary
allocation of UAH 1,067,200
for the payment of the various arrears. They further asserted that
these judgments had been enforced in full and without undue delay,
and that accordingly there had been no infringement of Article 1
of Protocol No. 1 to the Convention.
. The
applicants submitted that the State had been liable for the
outstanding debts due to them and that, having failed to pay those
debts for a long time, the State had deprived them of the actual
possession of their property, in violation of Article 1 of Protocol
No. 1.
2. The Court's
assessment
. The
Court draws attention to its case-law to the effect that the
impossibility for an applicant to obtain execution of a judgment in
his or her favour constitutes interference with the right to the
peaceful enjoyment of his or her possessions, as set out in the first
sentence of the first paragraph of Article 1 of Protocol No. 1
(see, among other judgments, Burdov v. Russia,
no. 59498/00, § 40, ECHR 2002 III, and Jasiūnienė
v. Lithuania, no. 41510/98, § 45,
6 March 2003).
. The
Court observes that the interference with the applicants' rights was
justified partly by reference to complications concerning the
allocation of funds for judicial benefits and the enforcement of the
related judgments using funds from the State budget. These
complications also related in part to reforms in the Ukrainian
judicial system and to the introduction of changes in the system of
administering the finances of the judiciary, with the subsequent
transfer of these functions from the Ministry of Justice to the State
Judicial Administration.
. In
the Court's opinion, the complications referred to by the Government
undeniably involved a legitimate public interest, but prevented a
fair balance from being struck between the State's interests and
those of the applicants, who, moreover, were responsible for the
exercise of important public functions in the administration of
justice. In particular, the Court observes that the litigation at
issue concerned compensation for the authorities' failure between
1995 and 2001 to comply with their legislative obligation to provide
the applicants with the judicial benefits envisaged by the
Constitution and the Judiciary Act (see paragraphs 33-34 above). The
Court considers, therefore, that the applicants' situation, and in
particular their sensitive status as independent judicial officers,
required that the authorities enforce the judgments and earmark the
necessary funds to that end without delay.
. In
particular, in the Court's view, the failure of the State to provide
judicial benefits to judges in a timely manner is incompatible with
the need to ensure their ability to exercise their judicial functions
independently and impartially, in order to be shielded from outside
pressures aimed at influencing their decisions and behaviour (see
paragraph 43 above). In this connection the Court refers to the
relevant legal instruments of the Council of Europe, such as the
Recommendation of the Committee of Ministers on the Independence,
Efficiency and Role of Judges and the European Charter on the Statute
for Judges, which clearly stress the importance of these factors (see
paragraphs 41-42 above).
. The
Court is of the opinion that the failure to ensure adequate and
timely payment of the remuneration of domestic court judges, and the
uncertainty in which they were left, upset the fair balance that has
to be struck between the demands of the public interest and the need
to protect the applicants' right to the peaceful enjoyment of their
possessions. Consequently, by failing to comply with the judgments
given in favour of the applicants, the national authorities for a
considerable period prevented them from receiving in full the
judicial benefits to which they were entitled by law, a circumstance
liable to impede the exercise of their judicial functions with the
necessary dedication.
. The
Court is therefore of the opinion that the impossibility for the
applicants to obtain the enforcement of the judgments in their favour
for a period of one year and four months (in the case of the first,
second and fourth applicants) and two years and six months (in the
case of the third applicant), breached their right to the peaceful
enjoyment of their possessions within the meaning of the first
paragraph of Article 1 of Protocol No. 1.
IV. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
. Article 41 of the
Convention provides:
“If the Court
finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”
A. Damage, costs
and expenses
. The
first, third and fourth applicant each claimed EUR 10,000 in
respect of non-pecuniary damage. The second applicant claimed
EUR 15,000 in compensation for non-pecuniary damage. They made
no claims as to pecuniary damage or costs and expenses.
. The
Government argued that the claims were unsubstantiated and the
amounts claimed exorbitant.
. The
Court takes the view that the applicants may be considered to have
suffered some non-pecuniary damage as a result of the serious
violations found, which cannot be compensated by the Court's finding
of a violation alone. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, and taking into
account the special circumstance of the applicants' important
judicial status, the Court considers it reasonable to award the
first, second and fourth applicants the sum of EUR 3,000 each for
non-pecuniary damage. It also awards the third applicant EUR 5,000
under this head.
B. Default interest
. The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS,
THE COURT UNANIMOUSLY
1. Decides
to join the applications;
2. Declares
admissible the complaints of all the applicants with regard to
the alleged violation of Article 1 of Protocol No. 1 to the
Convention, as well as the third applicant's complaint concerning the
alleged infringement of Article 6 § 1 of the Convention, and
declares the remainder of the applications inadmissible;
3. Holds
that there has been a violation of Article 6 § 1 of the
Convention in respect of the third applicant (application
no. 8538/04);
4. Holds
that there has been a violation of Article 1 of Protocol No. 1 to the
Convention in respect of all four applicants;
5. Holds
(a) that
the respondent State is to pay the first, second and fourth
applicants, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the
Convention, EUR 3,000 (three thousand euros) each in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(b) that
the respondent State is to pay the third applicant, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable;
(c) that
the above amounts shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(d) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
6. Dismisses
the remainder of the applicants' claims for just satisfaction.
Done
in English, and notified in writing on 26 April 2006, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer
Lorenzen
Registrar President
