CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 janvier 2005

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vertical-align:top } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 59312/00 by Anatoliy SVINTITSKIY AND OTHERS against Ukraine The European Court of Human Rights (Second Section), sitting on 18   January 2005 as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   A.B. Baka ,   Mr   I. Cabral Barreto ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   A. Mularoni ,   Ms   D. Jočienė, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 15   May 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, whose names appear in the annex, are Ukrainian nationals. They reside in the city of Kirovograd, Ukraine. The respondent Government were represented by their Agents - Mrs V. Lutkovska, succeeded by Mrs Z. Bortnovska. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. Until 1998 the nine applicants served as career officers in military unit A-425. In 1998, the applicants retired. Upon retirement, the applicants were entitled to different types of compensation and payments. As these entitlements went unpaid, the first and second applicant instituted proceedings in the Cherkassy Garrison Military Court against military unit A-0425 for their recovery. On 13   August 1998 the court found for the first applicant and awarded him UAH   2,376.37 [1] . On 24   September 1998 the court found for the second applicant and awarded him UAH   670 [2] . These court decisions were not appealed and came into force. The execution writs were sent to the Kirovograd Bailiffs' Service for enforcement. Between March 1999 and March 2000 the first and second applicants lodged numerous complaints with the local departments of justice and defence and with the local prosecutor's office about the non-enforcement of the judgments in their favour. By letter of 6   September 1999, the head of the economic department of the Ministry of Defence informed the applicants that the judgments in their favour remained unenforced due to the lack of sufficient funding from the State Budget. By letter of 12   January 2000, the Kirovograd District Prosecutors' Office informed the first applicant that the judgment in his favour could not be enforced due to the lack of funds of the debtor, and the impossibility of attaching the debtor's property since it belonged to the State. On 8   August 2001 the judgment in favour of the second applicant was enforced in full. On 17   September 2001 the judgment in favour of the first applicant was enforced in full. B.     Relevant domestic law The relevant domestic law is set out in the Court's judgment of 29   June 2004 in the case of Voytenko v. Ukraine (no   18966/02, §§   20-25). COMPLAINTS The first and second applicants complained under Articles 6   §   1 and 13 of the Convention, and Article   1 of Protocol No.   1, about the non-enforcement of the judgments of 13   August and 24   September 1998 given in their favour. Seven other applicants complained under Article   13 of the Convention and Article   1 of Protocol No.   1 about the impossibility of recovering similar debts. THE LAW I. The complaints of the third, fourth, fifth, sixth, seventh, eighth, and ninth applicants The Court notes that, after lodging their original complaints, the third, fourth, fifth, sixth, seventh, eighth, and ninth applicants have constantly failed to provide information and materials in support of their allegations, despite repeated requests from the Registry. In the absence of the necessary information before it, the Court finds the complaints of these seven applicants to be wholly unsubstantiated. It follows that this part of the case is manifestly ill-founded and must be rejected pursuant to Article   35 §§   3 and   4 of the Convention. II.   The complaints of the first and second applicants 1. The Government's preliminary objections The Government submitted that the first and second applicants (hereinafter – the applicants) had not exhausted domestic remedies as they did not lodge a claim with the domestic courts to challenge the inactivity of the Bailiffs, or to seek compensation for material and moral damage. The applicants maintained that they had exhausted all effective remedies. 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). The Government invoked the possibility for the applicants to challenge any inactivity or omissions on the part of the Bailiffs' Service, and to seek compensation for pecuniary and non-pecuniary damage caused by it. In the present case, however, the debtor is a State body and the enforcement of judgments against it, as it appears from the case file, can only be carried out if the State foresees and makes provision for the appropriate expenditures in the State Budget of Ukraine by taking the appropriate legislative measures. The facts of the case show that, throughout the period under consideration, the enforcement of the judgment in question was prevented precisely because of the lack of such legislative measures, rather then by a bailiff's misconduct. The applicants cannot therefore be reproached for not having taken proceedings against the bailiffs (see Shestakov v. Russia, decision, no.   48757/99, 18   June   2002). In these circumstances, the Court concludes that the applicants were absolved from pursuing the remedy invoked by the Government and have therefore complied with the requirements of Article   35 §   1. Accordingly, the Court dismisses the Government's preliminary objection. Following the full enforcement of the judgments of the Cherkassy Garrison Military Court of 13   August and 24   September 1998 given in favour of the applicants, the Government submitted under Article   34 that the applicants can no longer claim to be victims of a violation, and that the case should therefore be rejected as being incompatible ratione personae with the provisions of the Convention, or struck out of the list of applications (see Marchenko v. Ukraine , no.   63520/01, decision of 17   September 2002). The applicants 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 term “victim” 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 the violation, either expressly or in substance, and then afforded redress for it (see, Dalban v.   Romania [GC], no.   28114/95, §   44, ECHR 1999–VI). The Court agrees with the Government that the enforcement of the judgments awarded in the applicants' favour rectified the issue of non-enforcement, as such. However, this belated enforcement of the judgments has not replied to the allegation of the undue length of the procedures, for which no acknowledgment or reparation were offered by the authorities. The Court considers therefore that the applicants may still claim to be victims of an alleged violation of the rights guaranteed by Article 6 § 1 of the Convention and Article   1 of Protocol No.   1 in relation to the period during which the judgments remained unenforced (see Skubenko v. Ukraine, no.   41152/98, decision of 6   April 2004). Accordingly, the Court also dismisses this preliminary objection. 2. Article 6   §   1 of the Convention i. Applicability of Article 6   §   1 of the Convention 4.     The Government maintained that the applicant's complaints under Article 6   §   1 of the Convention were incompatible ratione materiae with the provisions of the said Article. The Court refers to its reasoning in previous similar cases against Ukraine (see Pogasiy v. Ukraine (dec.), no.   58932/00, 28   May   2002; Krapivnitskiy v. Ukraine (dec.), no.   60858/00, 17   September   2002; Marchenko v. Ukraine (dec.), no.   65520/01, 17   September   2002), where it found that Article 6   §   1 under its civil head was applicable to the judicial proceedings between a retired civil servant and his/her former employer when a dispute concerned outstanding financial obligations after retirement. Accordingly, the Court finds that Article 6   §   1 is applicable in the present case. ii. Otherwise as to admissibility 5.     The first and second applicants complained that, due to the lengthy non-execution of the judgments in their favour, their right to a fair hearing was violated. They invoked Article 6 § 1 of the Convention which provides as relevant: “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 maintained that the judgments in the applicants' favour were enforced in full and that the length of the enforcement proceedings was not excessive. The delays were justified by the general interest, namely the need to conduct military reforms that required more funds than the State could allocate in its budget. The applicants disagreed. 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. 3. Article 13 of the Convention 6.     The applicants next invoked Article   13 of the Convention which provides as relevant: “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.” The Government maintained that, given the purported inapplicability of Article 6   §   1 of the Convention to the present case, there was no violation of Article   13 of the Convention. Alternatively, the Government maintained that the applicants' complaints under Articles   6 and   13 of the Convention are the same, and therefore Article   6 takes precedence as the lex specialis , absorbing any Article   13 issue. Finally, the Government stated that possibility to challenge any inactivity of the Bailiffs' Service under domestic law was an effective remedy within the meaning of Article   13 of the Convention. The applicants maintained that they had exhausted all domestic remedies, to no avail. The Court considers, in the light of the parties' submissions, that the complaint under Article 13 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. 4. Article 1 of Protocol No. 1 7.     The applicants complained that their right to the peaceful enjoyment of their possessions was violated as a result of the lengthy non-enforcement of the judgements given in their favour by the Cherkassy Garrison Military Court. They invoked Article   1 of Protocol No.   1 which provides as relevant: “Every natural ... 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 maintained that the State did not deprive the applicants of their property and that the delay in payment of the judgment debts was due to the insufficient budgetary appropriations for the Armed Forces. The applicants maintained that the enforcement of judgments in their favour lasted an unreasonably long time and therefore their rights under Article   1 of Protocol No.   1 were violated. The Court considers, in the light of the parties' submissions, that the complaint under Article   1 of Protocol No.   1 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 complaints of the first and second applicants concerning the non-enforcement of the judgments of 13   August and 24   September 1998 given in their favour; Declares inadmissible the remainder of the application.   S. Dollé   J.-P. Costa   Registrar   President   ANNEX   No Name of the applicant Year of birth   1. Anatoliy Frantsovich SVINTITSKIY 1954   2. Aleksandr Vitalyevich GONCHAROV 1960   3. Vladimir Nikolayevich GRINCHENKO 1956   4. Mikhail Leonidovich POLISHCHUK 1959   5. Anatoliy Mikhaylovich VODOTYKA 1953   6. Vladimir Ivanovich KAMINNIY 1953   7. Oleg Nikolayevich NOVIKOV 1963   8. Sergey Yakovlevich YAKOVLEV 1959   9. Vasiliy Karpovich BERESTENKO 1954     [1] .     Around 340 euros (“   EUR”). [2] .     Around EUR 100.