European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12012/04
by Eduard Fedorovich KOTSARENKO
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 April 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,

and Claudia Westerdiek, Section Registrar.

Having regard to the above application lodged on 6 March 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 FACTS

The applicant, Mr Eduard Fedorovich Kotsarenko, is a Ukrainian national who was born in 1938 and lives in the village of Andreevka, Donetsk Region, Ukraine. The respondent Government were represented by their Agent, Mr Y. Zaytsev.

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

On 11 October 1999 the Slavyansk Court awarded the applicant 2,178 Ukrainian hryvnyas (UAH) in salary arrears, to be paid by his former employer, a private company, S. (“the company”).

The judgment in the applicant's favour was not appealed against, became final and the State Bailiffs' Service instituted enforcement proceedings.

The judgment remains unenforced.

COMPLAINTS

The applicant complained under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the judgment given in his favour.

THE LAW

The applicant complained about the State authorities' failure to enforce the judgment given in his favour. He relied on Articles 6 § 1 and Article 1 of Protocol No. 1 to the Convention, 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 fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

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, according to the documents provided by the Government, the company was private. Thus, the State's responsibility in the present case extends no further then the involvement of the 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 that the applicant instituted no proceedings against the Bailiffs' Service. Therefore, the applicant cannot be regarded as having exhausted the domestic remedies available to him under the 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 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 Peer Lorenzen
Registrar President