(Application no. 17327/02)
15 May 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lukyanchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 22 April 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
16. On 17 October 2005 the Khmelnytskyy Court requested the Pecherskyy Bailiffs to provide information concerning the status of the enforcement. On 12 January 2001 the Khmelnytskyy Court sent a reminder requesting an urgent reply. On 26 January 2006 the Pecherskyy Bailiffs informed the Khmelnytskyy Court that, following expiration of the three-year statutory term for keeping unclaimed deposits, in September 2005 the sum due to the applicant had been transferred to the State budget and on 29 December 2005 a decision had been taken to return the enforcement writ to the applicant. In the same letter they noted that according to the statutory provisions, the National Bank was to keep the writ.
II. RELEVANT DOMESTIC LAW
A. Law of Ukraine of 21 April 1999 on Enforcement Proceedings
Article 24. Admission of the enforcement writ for enforcement
... Within a three-day term of receipt of the enforcement writ a State bailiff shall take a decision to initiate the enforcement proceedings...
No later than the following day a copy of the decision to initiate the enforcement proceedings shall be transmitted to the beneficiary, the debtor and the body (official) that issued the enforcement writ ...
Article 44-1. Payment of the collected funds to the beneficiary
Funds collected from the debtor, shall be transferred by the bailiff to the deposit account of the respective body of the State Bailiffs’ Service.
If the funds collected from the debtor remain unclaimed by the beneficiary within three years from the date of their transfer to deposit account of the State Bailiffs’ Service, these funds shall be transferred to the State Budget of Ukraine...
B. Order of the Ministry of Justice of Ukraine of 15 December 1999 on the Approval of the Instruction on the Performance of the Enforcement Actions
21. Relevant provisions of this order read as follows:
11.2.16. Funds transferred to the deposit account of the State Bailiffs’ Service shall be preserved:
...deposited sums that are to be paid to the citizens – during three years;
11.2.18. Term of preservation of these amounts shall be calculated from the day of sending notice to the beneficiary about the availability of the funds due to him.
I. SCOPE OF THE CASE
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
A. The non-enforcement of the judgment
B. Length of the proceedings
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, is to pay the applicant the outstanding debt under the judgment of 19 July 2001 as amended on 16 October 2001 as well as to pay the applicant EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen