European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2009/1891.html
Cite as: [2009] ECHR 1891

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FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16682/04
by Pavel Ivanovich BONDAR
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 20 October 2009 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,

and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 8 April 2004,

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 Pavel Ivanovich Bondar, is a Ukrainian national who was born in 1960 and lives in the town of Makeyevka, Ukraine. The respondent Government were represented by their Agent, Mr Y. Zaytsev.

In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear station. He was subsequently granted disabled person status and awarded special allowances from the State.

1 First set of proceedings and the enforcement of the judgment of 5 September 2002.

On an unspecified date in 2002 the applicant instituted proceedings in the Chervonogvardeysky District Court of Makeyevka (“the District Court”) against the Labour and Social Security Department of the Chervonogvardeysky District State Administration of Makeyevka (“the Department”). The applicant sought recovery of 1,529.51 Ukrainian hrivnias (UAH) in food allowance arrears (an extraordinary compensation for food expenses) for the period from July 2001 to June 2002. He also sought a ruling obliging the Department to pay this allowance in good time.

On 5 September 2002 the District Court allowed the applicant’s claims in full.

On 24 October 2002 the Chervonogvardeysky District Bailiffs’ Service of Makeyevka initiated enforcement proceedings in respect of the part of the judgment which concerned the payment of UAH 1,521.21. This amount was fully paid by several instalments in the period prior to13 May 2003.

As to the remainder of the judgment of 5 September 2002, in July 2003 the applicant received in full the payments due to him for the period prior to 1 June 2003.

On an unspecified date the applicant lodged a complaint with the District Court seeking a finding that the above delays in enforcing the judgment of 5 September 2002 had been caused by the Bailiffs’ inactivity. On 10 October 2003 the court allowed the applicant’s complaint.

According to the applicant’s submissions and the materials in the case file, since July 2003, the Department has, on several occasions, paid the monthly allowance due to him after short delays.

2. Second set of proceedings and the enforcement of the judgment of 16 March 2004

In 2003 the applicant was not provided with a free sanatorium voucher to which he was entitled. On 16 March 2004 the District Court ordered the Department to provide the applicant with a free sanatorium voucher.

According to the materials submitted by the Government, on 24 May 2005 the applicant was provided with a voucher and therefore the judgment of 16 March 2004 was enforced in full. Following this event, the Donetsk Regional Bailiffs’ Service terminated the enforcement proceedings.

The applicant agreed that on that date he had been provided with a voucher but contested the statement that its delivery had constituted enforcement of the judgment. In particular, he stated that he had received the voucher in accordance with his request lodged with the Department in 2004. The applicant did not however inform the Court whether or not he had challenged before the domestic courts the Bailiffs’ decision to terminate the enforcement proceedings.

3. Third set of proceedings

On 15 February 2005 the applicant instituted proceedings in the District Court against the Department seeking a ruling obliging the Department to provide him with a free sanatorium voucher. He also claimed compensation for pecuniary and non-pecuniary damage. On 4 May 2005 the District Court found against the applicant. On 7 July 2005 the Donetsk Regional Court of Appeal amended the judgment of 4 May 2005. It terminated the proceedings concerning the applicant’s claim regarding the sanatorium voucher since this claim had already been considered by the first-instance court (see the previous paragraph). By the same decision the court of appeal upheld the rest of the judgment of 4 May 2005.

4. Fourth set of proceedings.

On 5 August 2003 the applicant instituted proceedings against the Department in the District Court seeking recalculation of his recreational leave allowance. On 8 October 2003 the court declined to consider his claim since the applicant failed to appear.

5. Fifth set of proceedings

On 9 August 2005 the applicant instituted proceedings against the Department in the District Court seeking recalculation of his recreational leave allowance. On 4 November 2005 the court found for the applicant. On 16 January 2006 the Donetsk Regional Court of Appeal quashed that judgment and found against the applicant. The applicant lodged an appeal in cassation with the Supreme Court. On 6 March 2006 his appeal in cassation was transferred to the Higher Administrative Court. On 10 May 2007 the latter quashed the decisions of the lower courts and remitted the case for fresh consideration to the first-instance court. On 29 August 2007 the District Court partly allowed the applicant’s claims. On 5 December 2007 the Donetsk Administrative Court of Appeal quashed the judgment of the first-instance court. By the same decision the court of appeal partly allowed the applicant’s claim. On 16 January 2009 the decision of 5 December 2007 was enforced in full. According to the applicant’s submissions, the decision of 5 December 2007 was appealed in cassation by the Department and the proceedings are still pending before the Higher Administrative Court. However he did not provide any document in support of this statement.

COMPLAINTS

The applicant complained under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the judgments given in his favour had not been enforced in good time. He alleged under Article 13 that he had no effective remedy for these complaints.

The applicant further complained, under Article 13 of the Convention, of unfairness in the third set of proceedings.

With respect to the proceedings instituted on 5 August 2003 the applicant complained under Article 6 § 1 of the Convention about the lack of access to a court.

The applicant finally complained of the unfairness and the excessive length of the fifth set of proceedings. He relied on Articles 6 § 1 and 13 of the Convention.

THE LAW

The applicant complained about the non-enforcement of the judgment of 16 March 2004 given in his favour and the lack of an effective remedy in that respect. He invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, in so far as relevant, as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time 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.”

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 Government contested the applicant’s submissions, stating that the applicant had been provided with the voucher and therefore the judgment had been enforced in full. The applicant disagreed.

The Court assumes that the judgment in question was enforced on 24 May 2005, given the fact that the Bailiffs’ Service had established that the applicant had been provided with the voucher on that date and consequently had terminated the enforcement proceedings, which the applicant did not contest at the national level (see, mutatis mutandis, Gavrilenko v. Ukraine, no. 24596/02, § 18, 20 September 2005).

Given that the decision in question was enforced within fourteen months, the Court finds that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant further complained that the length of the fifth set of proceedings had been incompatible with the “reasonable time” requirement. He relied on Articles 6 § 1 and 13 of the Convention.

The Government contested the applicant’s submissions, stating that there had been no significant periods of inactivity attributable to the State. They maintained that the judicial authorities had acted with due diligence. The Government therefore maintained that the length of proceedings in the applicant’s case had not been unreasonable. The applicant disagreed.

According to the materials in the case file and the documents provided by the parties, the proceedings complained of began on 9 August 2005. According to the Government, they ended on 16 January 2009, when the decision of 5 December 2007 was enforced in full. The applicant alleged that the Department had appealed in cassation against the decision of 5 December 2007 and the proceedings were still pending before the Higher Administrative Court.

The Court observes that the applicant did not provide any document in support of his statement that the cassation proceedings were still pending before the Higher Administrative Court. Therefore, it assumes that they ended on 16 January 2009, when the judgment was enforced in full.

The proceedings in question lasted three years and five months and included judicial proceedings before three instances and enforcement proceedings.

Given the overall length of the proceedings and that there were no significant periods of inactivity attributable to the State, the Court concludes that the length of proceedings in the instant case did not exceed a reasonable time within the meaning of Article 6 § 1 of the Convention. Therefore, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about lengthy non-enforcement of the judgments of 5 September 2002 and 5 December 2007 and lack of an effective remedy in that respect. He further complained, under Articles 6 § 1 and 13 of the Convention, of unfairness in the third and fifth sets of the proceedings. With respect to the proceedings instituted on 5 August 2003 the applicant complained under Article 6 § 1 of the Convention about the lack of access to a court.

In the light of all the material in its possession, and in so far 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 or its Protocols.

Therefore, this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Peer Lorenzen
Deputy Registrar President