AS TO THE ADMISSIBILITY OF
by Stanislav Maryanovych VYSOTSKYY
The European Court of Human Rights (Fifth Section), sitting on 17 February 2009 as a Chamber composed of:
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 30 April 2004,
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 applicant, Mr Stanislav Maryanovych Vysotskyy, is a Ukrainian national who was born in 1947 and lives in the town of Vinnitsa. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
On 15 December 1999 the Staromisky District Court of Vinnytsya awarded the applicant 11,307 Ukrainian hryvnyas (UAH)1 in salary arrears and other payments against the company, OJSC AK Sater in which the State had had no share since January 1997.
The judgment in the applicant’s favour was not appealed against, became final and the Staromisky District Bailiffs’ Service (“the Bailiffs”) instituted enforcement proceedings.
In 2002 the applicant instituted civil proceedings in the Leninsky District Court challenging the Bailiffs’ inactivity and claiming compensation.
On 19 November 2002 the court ordered the Bailiffs to enforce the judgment. By the same judgment the court dismissed the applicant’s claim for compensation.
On 9 December 2003 the Vinnytsya Regional Court of Appeal dismissed his appeal against that judgment.
The applicant did not appeal in cassation before the Supreme Court.
The judgment of 15 December 1999 remains unenforced.
The applicant complained under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 that the judgment in his favour was not enforced. He further complained under Article 13 of the Convention about the lack of effective remedies for the above complaints. The applicant finally invoked Article 7 § 2 of the Convention referring to the same facts.
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. ...”
“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 ....”
In their observations, the Government submitted that the State was not responsible for the debts of the defendant, which was a private company. They further 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 applicant disagreed.
The Court observes that the company became private in 1997, that is before the judgment of 15 December 1999 was pronounced. Thus, the State’s responsibility in the present case extends no further then the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia, no. 48757/99, decision of 18 June 2002).
Moreover, as the Court 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 the delays in payment of the awarded amount (see Dzizin v. Ukraine (dec.), no. 1086/02, 24 June 2003).
The Court notes in that respect that the applicant’s complaint about the non-enforcement of the judgment concerns two different periods of time, in particular, the period prior to 19 November 2002, that is the date on which the court ruled on his complaint about the inactivity of the Bailiffs’ Service in respect of enforcement of the judgment of 15 December 1999 and the period after 19 November 2002.
With respect to the first period, the Court notes that the applicant did not appeal in cassation against the judgment of 19 November 2002 by which the court dismissed his compensation claim. As to the period after 19 November 2002, the Court observes that the applicant instituted no proceedings against the Bailiffs’ Service at all. Therefore, in respect to the both periods, the applicant cannot be regarded as having exhausted the domestic remedies available to him under Ukrainian law (see Dzizin v. Ukraine (dec.), no 1086/02, 24 June 2003, and Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002).
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
The Court finds that this part of the application is wholly unsubstantiated and must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
1 Around 2,060 euros (EUR)