CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 avril 2004

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .s4E8A404A { margin-top:36pt; margin-bottom:12pt; page-break-after:avoid; font-size:14pt } .sF06E89EC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; page-break-after:avoid } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .s21DA24D5 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt } .sC2E0339F { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt } .s71BC72F4 { margin-top:18pt; margin-bottom:12pt; text-align:center; font-size:10pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s97B7A20 { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; font-size:10pt } .sC32CB04D { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-after:avoid; font-size:10pt } .s70EB9942 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; page-break-after:avoid; font-size:10pt } .s2D32CF5 { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; page-break-after:avoid; font-size:10pt } .s5AF2DFE5 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-after:avoid } .sB35770B4 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; page-break-after:avoid } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s45EC7D31 { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s69BC179A { margin-top:36pt; margin-bottom:30pt; page-break-after:avoid; font-size:14pt } .s757697B4 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-after:avoid } .s38747C79 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-after:avoid } .sDCCC0E43 { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt } .s32E480FE { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .sF66B8D08 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s588BDBF1 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt } .s6B99F7AC { width:21.8pt; display:inline-block } .s3B27B99C { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:21.8pt } .s3D9A5C0E { width:29.98pt; text-indent:0pt; display:inline-block } .sBF0FE613 { width:36pt; text-indent:0pt; display:inline-block } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .sED2C25E { width:23.32pt; text-indent:0pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } SECOND SECTION FINAL DECISION AS TO THE ADMISSIBILITY OF Application no. 41152/98 by Nikolay SKUBENKO against Ukraine The European Court of Human Rights (Second Section), sitting on 6   April 2004 as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   A.B. Baka ,   Mr   L. Loucaides ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen   Mr   M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 15 April 1998, Taking into account the decision of the Fourth Section of 5 October 2000 striking the application out from the list of case and the decision of the Second Section of 25 March 2003 restoring the application to the list of case before the Court, 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 Skubenko, is a Ukrainian national who was born in 1953 and lives in Kyiv. The applicant is a former employee of the Institute of Semiconductor Physics of the Academy of Sciences of Ukraine (the “ASU”). The applicant is represented before the Court by Mr   Konstantin   Buzardzhi and Ms Olga Zhukovska, practicing lawyers. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. Between 1991 and 1995 the applicant, who was already a tenant of studio No. 35/5 in a communal apartment, petitioned various Ukrainian authorities seeking the right to reside in studio No. 35/6, which had become vacant in January 1995. By a decree of 10 July 1995 the Leningradsky District Council of Kyiv (the “LDC”) granted Mrs V.M.K. (a private person) the right to use studio No. 35/6. On 30 August 1995 the applicant lodged complaints with the Leningradsky District Court of Kyiv (the “Leningradsky Court”) seeking Mrs V.M.K.’s eviction from the studio No. 35/6. He also requested the court to issue him a certificate granting him the right to occupy studio No. 35/6. On 22 November 1996 the Leningradsky Court rejected the applicant’s claims as being unsubstantiated. On 5 February 1997 the Kyiv City Court quashed this judgment and remitted the case for fresh consideration. In December 1997 the applicant lodged his complaints with the Leningradsky Court against the ASU and the LDC, seeking to quash the decree of 10   July 1995 and to join studio No. 35/6 to his residential premises. By a judgment of 4 December 1997, the court quashed the decree of 10 July 1995 and recognized the applicant’s right to the use of studio No. 35/6. The court ordered to the respondents to take all necessary measures for the applicant’s enjoyment of his residential premises and the enforcement of the judgment of 4 December 1997. The judgment became final on 14 December 1997. In January 1998 the applicant lodged the writ of execution with the Leningradsky District Execution Service of Kyiv. As a result, the certificate of Mrs V.M.K. granting her the use of studio No. 35/6 was annulled. On 6 February 1998 the applicant lodged the writ of execution with the Starokyivsky District Execution Service of Kyiv (the “Starokyivsky Execution Service”) with a view to the ASU, one of the owners of the apartment, being obliged to issue a certificate ( ордер ) granting him the use of studio No. 35/6. The execution proceedings were instituted on 23 February 1998. Between April 1998 and February 1999, the applicant lodged several complaints with the Leningradsky Court, the Starokyivsky District Court of Kyiv (the “Starokyivsky Court”), the Kyiv City Court, the General Prosecution Service and the Kyiv Department of Justice of the Ministry of Justice, complaining about the failure of the Execution Service to enforce the judgment of 4 December 1997. On 1 September 1998 the Starokyivsky Execution Service initiated administrative proceedings against the Logistics Director of the ASU who had failed to execute the judgment given in the applicant’s favour. On 10 September 1998 the Logistics Department of the ASU informed the applicant and the Starokyivsky Court that the applicant had received the keys and free access to studio No. 35/6 in May 1998. On 23 September 1998 the Starokyivsky Court fined the Logistics Director of the ASU for failure to comply with the judgment of 4 December 1997. The Director appealed against this decision as he did not have the power to issue a certificate for the use of the apartment, which power lay with the LDC. The Kyiv City Court allowed the Director’s appeal on 4 November 1998. On 29 December 1998 the Starokyivsky Court dismissed the petition of the Starokyivsky Execution Service of 1 September 1998 by which it had initiated administrative proceedings against the Logistics Director of the ASU. On 5 August 1999 the applicant was dismissed from his position at the ASU for alleged failure to appear at work for a lengthy period of time. On 6 August 1999 the ASU issued resolution No. 1041 granting the applicant use of studios Nos. 35/5 and 35/6. They also petitioned the LDC to issue a certificate ( ордер ) for the applicant’s use of those studios. On 28 September 1999 the LDC issued decree No. 1329 authorising the applicant to use apartments Nos 5 and 6 situated at 14, Dobrokhotov Street in Kyiv. On 12 October 1999 the Kyiv Department of Justice informed the applicant about the execution of the judgment of 4 December 1997. On 20 October 1999 the LDC issued a certificate ( ордер на квартиру ) to the applicant recognising his right to use the aforementioned apartments. On 29 October 1999 the applicant informed the Court that the certificate for the use of the appartment was invalid as it concerned apartments No. 5 and 6, but not studios Nos. 35/5 and 35/6, specified in the judgment of the Leningradsky Court. In January 2001 the ownership title of appartment No. 35 belonging to the ASU was transferred to the LDC. In July 2003 the applicant was informed by the Communal Residence Department of the LDC that he would be provided with a certificate for his residential premises. On 7 August 2003 the LDC issued decree No. 1411 acknowledging the applicant’s right to use studio No. 35/6 and issued him a certificate of use on 2 September 2003. B.     Relevant domestic law 1.     Constitution of Ukraine Article 47 “Everyone has the right to housing. The State creates conditions that enable every citizen to build, purchase a property, or to rent housing. Citizens in need of social protection are provided with housing by the State and bodies of local self-government, free of charge or at a price affordable to them, in accordance with the law. No one shall be forcibly deprived of housing other than on the basis of the law, pursuant to a court decision.” Article 48 “Everyone has the right to a standard of living sufficient for himself or herself and his or her family, which includes adequate nutrition, clothing and housing.” Article 55 “Human and citizens’ rights and freedoms are protected by the court. Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of State power, bodies of local self-government, officials and officers.” Article 124 “Justice in Ukraine is administered exclusively by the courts. The delegation of the functions of the courts, and also the appropriation of these functions by other bodies or officials, shall not be permitted. The jurisdiction of the courts extends to all legal relations that arise in the State. ... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” 2.     Law of Ukraine of 21   April   1999 “on the Enforcement Proceedings” Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Execution Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Execution Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation. 3.     Law of Ukraine of 24   March   1998 “on the State Execution Service” Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. COMPLAINTS Invoking Article 6 § 1 of the Convention the applicant complained about the length of the enforcement of the judgment of the Leningradsky District Court of Kyiv of 4 December 1997. The applicant considers that the lengthy non-enforcement of the judgment awarded in his favour is a violation of his right to a fair hearing envisaged by the aforementioned provision. Following communication of the application to the respondent Government, on 26 September 2003, the applicant lodged new complaints about an infringement of Articles 13, 34 and Article 1 of Protocol No. 1 to the Convention. In particular, he stated, stressing the issue of exhaustion of the domestic remedies, that no effective remedies were available for his complaints under Article 6 § 1 of the Convention. He also mentioned that his property rights were infringed as the judgment was not executed for a long time and, therefore, he was not able to receive a certificate for the use of the second studio. Referring to Article 34 of the Convention, the applicant maintained that he was persecuted by the State for applying to the European Court. THE LAW I.     THE SCOPE OF THE CASE The Court recalls that the institutions set up under the Convention have jurisdiction to review, in the light of the entirety of the Convention’s requirements, the circumstances complained of by an applicant. In the performance of their task, the Convention institutions are, notably, free to attribute to the facts of the case, as found to be established on the evidence before them, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner. Furthermore, they have to take into account not only the original application but also the additional documents intended to complete the latter by eliminating initial omissions or obscurities (see, Ringeisen v. Austria , judgment of 16 July 1971, Series A no. 13, pp. 40-41, § 98, as compared with p. 34, § 79, and pp. 39-40, §§ 96-97). The Court notes that in the instant case the applicant introduced his new complaints after the communication of the case to the respondent Government, based on an alleged infringement of Articles 13 and Article   1   of   Protocol   No.   1   to the Convention. In the Court’s view, these complaints are not an elaboration of his original complaint to the Court lodged five years earlier and on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take these matters up separately (cf. the judgment in Nuray Şen v. Turkey of 30 March 2004, no. 25354/94, § 200). II.     THE GOVERNMENT’S PRELIMINARY OBJECTIONS A.     Exhaustion of domestic remedies The Government contended that the applicant has not exhausted domestic remedies as he did not lodge a claim with the domestic courts to challenge the inactivity of the State Execution Service or the District Council, seeking to expedite the enforcement proceedings in the case. They further mentioned that the applicant did not appeal to the prosecution service seeking to institute criminal proceedings against those responsible for the non-enforcement of the court decision. The applicant contested this submission, stating that he had used all remedies available to him to complain about the non-enforcement of the judgment. Moreover, there were no effective remedies that would expedite enforcement of the judgment that he had to exhaust, given his particular situation, since the non-enforcement of the judgment in his favour had been caused by the failure of the State Execution Service and the District Council to act. The Court recalls that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see Khokhlich v. Ukraine , no. 41707/98, § 149, 29 April 2003). Domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). As regards “compensatory” remedies, the Court recalls that in previous cases against Ukraine concerning the non-enforcement of judgments, (see, for example, Makarov v. Ukraine (dec.), no. 59032/00, 28   May   2002), it accepted the Government’s argument with respect to applicants’ claims for compensation for material and moral damage, caused by lengthy and allegedly irregular enforcement proceedings, in the situation where the judgments in question had been enforced and, therefore, the principal complaint had been remedied at the domestic level. However, in the instant case, the judgment in the applicant’s favour remained unenforced for a long time. As regards “preventive” remedies, the Court recalls that, where the facts of the case show that, throughout the period under consideration, the enforcement of a judgment was prevented by the actions of the State District Council and by the failure to act of the State Execution Service, the applicant cannot be reproached for not having taken proceedings against those authorities (see Shestakov v. Russia (dec.), no.   48757/99, 18   June   2002). This is the situation in the present case. In the circumstances, the Court concludes that the applicant is absolved from pursuing further litigation and has complied with the requirements of Article 35 § 1 of the Convention. B.     The applicant’s victim status The Government mentioned that, in accordance with the jurisprudence of the Court, an applicant who has obtained reparation at the national level for an alleged violation of the Convention can no longer be considered a victim for the purposes of Article 34 of the Convention (see, Marchenko v. Ukraine (dec.), no. 63520/01, 17 September 2002). Accordingly, as the judgment of the Leningradsky District Court of Kyiv of 4 December 1997 has been executed, the applicant can no longer be considered a victim of a violation of his rights under Article 6 § 1 of the Convention. They therefore proposed that the application be declared inadmissible or struck out of the Court’s list of cases. The applicant disagreed. The Court notes that, under Article 34 of Convention, it “may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto...” According to the Court’s established case-law, the word "victim" in the context of Article 34 denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice. Consequently, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a "victim" unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, Dalban c.   Roumanie [GC], no. 28114/95, § 44, ECHR 1999–VI). The Court agrees with the Government that the execution of the judgment awarded in the applicant’s favour rectified the issue of non-execution, as such. However, the late execution of the judgment has not met the allegation of the undue length of that procedure, for which no acknowledgment or reparation were offered by the authorities. The Court considers therefore that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by the Article 6 § 1 of the Convention in relation to the period during which the judgment remained unexecuted. II.     MERITS OF THE APPLICANT’S COMPLAINTS The applicant complained that, due to the lengthy non-execution of the judgment in his favour, his right to a fair hearing was violated. He invoked Article 6 § 1 of the Convention which provides, insofar as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.” The Government acknowledged the need to enforce judgments given in favour of applicants. However, it referred to a technical mistake made in the applicant’s papers, i.e. the reference made to a different studio. Moreover, the enforcement proceedings have been discontinued as the judgment was executed and the applicant received a certificate of use for the studio in question. Finally, the Government maintained that there has been no violation of Article 6 § 1 of the Convention in the applicant’s case. The applicant maintained his complaint. He pointed out that the execution of the judgment in his case took an unreasonably long time, in violation of the guarantee of a right to a hearing within a reasonable time. He referred to the case-law of the Court, where the length of the execution proceedings, being a part of the overall proceedings in the case, was assessed in the light of the complexity of the case, the actions of the parties and the delays that could be attributed to the domestic authorities. The Court considers, in the light of the parties’ submissions, that this complaint under Article 6 § 1 of the Convention raises serious questions of fact and law, the determination of which requires an examination on the merits. The Court concludes therefore that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint concerning the lengthy non-enforcement of the judgment of the Leningradsky District Court of Kyiv of 4 December 1997.   S. Dollé           J.-P.Costa   Registrar           President