European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36780/06
by Nikolay Panteleyevich SERGEYEV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 November 2008 as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges, and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 16 August 2006,

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 Nikolay Panteleyevich Sergeyev, is a Ukrainian national who was born in 1927 and lives in Gorlovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 21 August 1999 the Tsentralno-Gorodskoy District Court of Gorlovka awarded the applicant 1,438 Ukrainian hryvnias¹ in compensation for damage caused to his property by a privately owned company, “Z.”.

That judgment became final and the State Bailiffs’ Service instituted proceedings to enforce it.

On 10 June 2003 the Donetsk Commercial Court instituted liquidation proceedings against the debtor company.

In this regard on 4 November 2003 the State Bailiffs’ Service terminated the enforcement proceedings against the debtor company and transferred the applicant’s writ of enforcement to the liquidation commission for further processing.

The applicant complained to various State authorities about lengthy non-enforcement of the judgment in his favour, but to no avail. However, he did not sue the State Bailiffs’ Service for its alleged inactivity or omissions.

The judgment of 21 August 1999 remains unenforced.

B.  Relevant domestic law

The relevant provisions of the State Bailiffs’ Service Act of 24 March 1998 and the Enforcement Proceedings Act of 21 April 1999 are summarised in the case of Dzizin v. Ukraine ((dec.), no. 1086/02, 24 June 2003).

COMPLAINT

The applicant complained without any reference to the Convention provisions about the lengthy non-enforcement of the judgment in his favour.

THE LAW

In their observations, the respondent Government submitted that the State was not responsible for the delay in the enforcement of the judgment in question, which was due to the lack of funds of a private company.

They further maintained that the applicant had not challenged the alleged inactivity of the State Bailiffs’ Service and had not claimed relevant compensation before the domestic courts. The Government therefore contended that the applicant had not exhausted, as required by Article 35 § 1 of the Convention, the remedies available to him under Ukrainian law. The Government maintained that such remedies were effective both in theory and in practice.

The applicant disagreed and submitted that he had complained to various State authorities about lengthy non-enforcement of the judgment in his favour, but to no avail.

The Court agrees with the Government 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 notes that in the present case enforcement of the judgment in the applicant’s favour was within the jurisdiction of the State Bailiffs’ Service until 4 November 2003 when the enforcement proceedings against the debtor company were terminated and the writs of enforcement were transmitted to the liquidation commission. In this regard the Court reiterates that, as it has already held in similar cases, the Ukrainian legislation provides for the possibility to challenge before the courts the lawfulness of actions and omissions of the State Bailiffs’ Service in enforcement proceedings and to claim damages from that Service for delays in payment of the awarded amount (see, for instance, Kukta v. Ukraine (dec.), no. 19443/03, 22 November 2005). However, in the instant case, the applicant failed to do so and, accordingly, cannot be regarded as having exhausted the domestic remedies available to him under Ukrainian law.

Finally, the Court notes that after 4 November 2003 enforcement of the judgment at issue was within the jurisdiction of the liquidation commission, the acts or omissions of which the State, in the present case, cannot be held liable for (see Katsyuk v. Ukraine, no. 58928/00, §§ 39-40, 5 April 2005 and Fuklev v. Ukraine, no. 71186/01, § 76, 7 June 2005).

It follows that the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Rait Maruste
Registrar President