CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 mai 2007

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Lorenzen , President ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   J. Borrego Borrego ,   Mrs   R. Jaeger ,   Mr   M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 1 June 2002, 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, Mrs Melaniya Danylivna Shapoval, is a Ukrainian national, who was born in 1936 and currently resides in the village of Kniazhychi, Cherkassy region. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Valeriya Lutkovska and Mr Yuriy Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. A. The circumstances of the case The applicant is a former member and employee of “Knyazhyky”, an agricultural production co-operative (hereinafter “the APC”). In February 2000, upon the Decree of the President of Ukraine “On immediate measures for acceleration of reform in agriculture” of 3 December 1999, the members of the APC decided to divide it into property and land shares ( земельні і майнові паї ), following which in March 2000 the applicant received a land ownership certificate ( land certificate, transformed on 31 May 2002 into the State act on land ownership ). On 27 July 2000 the applicant instituted proceedings in the Monastyryshchensky District Court of Cherkassy Region (“the Monastyryshchensky Court”) against the APC seeking to receive compensation for unpaid salary and to be paid the value of her property share. On 9 November 2000 the Monastyryshchensky Court allowed her claims and ordered the APC to pay her UAH 13,855 [1] in compensation for salary arrears and for her property share. The execution proceedings were initiated on 1 December 2000. On 10 April 2001 the APC was re-organised in a joint stock company “Knyazhyky”. In January 2002 the applicant instituted proceedings in the Monastyryshchensky Court against the Monastyryshchensky District Department of Justice, seeking compensation for damage caused by its failure to execute the judgment of 9 November 2000, and requesting the court to oblige the Department to execute that judgment. On 5 February 2002 the Monastyryshchensky Court rejected her claims as being unsubstantiated. The applicant did not appeal against this decision. On 23 July 2002 the Cherkassy Regional Department of Justice informed the applicant that the judgment of 9 November 2000 could not be executed due to the debtor’s lack of funds. On 25 July 2003 the Bailiffs’ Service seized from the debtor UAH 500, and on 30 July 2003 the applicant was paid UAH 495. On 24   May 2005 the Bailiffs’ Service discontinued the enforcement proceedings due to the debtor’s lack of funds. The applicant did not challenge that decision before the domestic courts. B. Relevant domestic law The Law of Ukraine of 10 June 1996 “On privatisation of property in agriculture” provided for privatisation of the State-owned collective farms and enterprises through their transformation into collective agricultural companies or joint stock companies. The Decree of the President of Ukraine 3 December 1999 “On immediate measures for acceleration of reform in agriculture” provided for a possibility for members of collective agricultural companies to receive in kind their land and property shares and to establish private farms or other privately owned agricultural enterprises. COMPLAINTS The applicant complained under Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 about the non-execution of the judgment on 9   November 2000 given in her favour. THE LAW 1. The applicant complained about the State authorities’ failure to enforce the judgment of the Monastyryshchensky Court of 9 November 2000. She relied on Articles   6   §   1 and 14 of the Convention and Article   1 of Protocol   No.   1, which provide, insofar 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 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 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 respondent Government submitted that the State was not responsible for the debts of the defendant, which is a private company. They further maintained that the applicant neither challenged the decision of the Bailiffs’ Service to discontinue the enforcement proceedings nor appealed against the decision of 5 February 2002 of the Monastyryshchensky Court. The Government therefore contended that the applicant had not exhausted, as required by Article 35 § 1 of the Convention, the remedies available to her under Ukrainian law. The Government maintained that such remedies were effective both in theory and in practice. The applicant maintained that the judgment given in her favour was not enforced due to the omission and inactivity by the Bailiffs’ Service. The Court observes that the non-enforcement of the judgment given in the applicant’s favour is due to the private entity’s lack of funds. The Court agrees with the Government that the State cannot be considered responsible for such lack of funds and its responsibility extends no further then the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18   June   2002). It follows that in this part the applicant’s complaint is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3.   Moreover, as the Court has already held in similar cases, the Ukrainian legislation provides for a 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, for instance, Dzizin v. Ukraine (dec.), no. 1086/02, 24   June 2003). In the present case, the applicant neither applied to any domestic court against the decision of Bailiffs’ Service to discontinue the enforcement proceedings nor appealed against the judgment of the domestic court which found no omissions or inactivity of the Bailiffs’ Service in the impugned enforcement proceedings. The applicant, accordingly, cannot be regarded as having exhausted the domestic remedies available to her under Ukrainian law, as required by Article   35   §   1 of the Convention. In so far as the applicant complained under Article 14 of the Convention, without giving further details, the Court considers the matter to be wholly unsubstantiated. It must, therefore, be rejected in accordance with Article   35 §§   3 and   4 of the Convention as being manifestly ill-founded. The Court finds that the application is unsubstantiated and must therefore be rejected on the whole, pursuant to Article 35 §§ 1, 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention; Declares the application inadmissible.   Claudia Westerdiek   Peer Lorenzen   Registrar   President   [1] .     EUR 3,008