FIFTH SECTION

DECISION

Application no . 3958/13 Yaroslav Mykhaylovych ZOLOTYUK against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 16 December 2014 as a Chamber composed of:

Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Aleš Pejchal, judges,

and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 30 December 2012 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yaroslav Mykhaylovych Zolotyuk , is a Ukrainian national, who was born in 1955 and lives in Zhytomyr .

A. The circumstances of the case

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

On 29 December 2002 Mr K. caused a traffic accident and his car collided with the applicant ’ s car. The applicant sustained bodily injuries of medium gravity as a result.

On 17 December 2003 the Zhytomyr District Court of the Zhytomyr region absolved Mr K., who had admitted his guilt, under the Amnesty Act.

By a judgment of 15 April 2005, the Korolyovskyy District Court of the city of Zhytomyr awarded the applicant 20,668.44 Ukrainian hryvnias (UAH) against Mr K. in respect of pecuniary and non-pecuniary damage caused by the traffic accident mentioned above. The bailiffs terminated the enforcement proceedings for the lack of property of Mr K. which could be attached. The applicant did not challenge termination of the enforcement proceedings before the domestic courts. The applicant unsuccessfully attempted to institute criminal proceedings against Mr K. for the latter ’ s failure to pay the judgment debt. He also complained about the non ‑ enforcement to the prosecutor and then challenged the alleged inaction of the prosecutor before the courts.

In March 2010 the applicant lodged a claim with the Korolyovskyy District Court against the Cabinet of Ministers, seeking compensation for the damage caused by Mr K. under Article s 1177 and 1207 of the Civil Code.

By the judgment of 1 March 20 12, the court rejected the applicant ’ s claim on the ground that a special law laying down the conditions and mechanism for enforcing the provisions of Article s 1177 and 1207 of the Civil Code had not yet been enacted . Furthermore, the court noted that the insolvency of Mr K. had not been established.

On 13 June and 2 0 July 2012 respectively the Zhytomyr Regional Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the first - instance court.

B. Relevant domestic law

Civil Code

The Civil Code, which came into force in 2004, lays down different obligations as to compensation in respect of damage. Among others, two articles, namely Article 1177, relied on by the applicant in the domestic proceedings, and Article 1207 , provide for the State to compensate the victims of a crime if the offender is not identified or is insolvent. The articles in question provide as follows:

Article 1177

Compensation for pecuniary damage to natural person s who were victim s of a crime

“1. Pecuniary damage caused to the property of a natural person as the result of a crime shall be compensated for by the State if the person who committed the crime is not identified or is insolvent.

2. The c onditions and procedure governing compensation for pecuniary damage caused to the property of a natural person who was the victim of a crime shall be established by law.”

Article 1207

Obligation of the State to compensate for damage caused by mutilation, other physical injury or death as the result of a crime

“1. Damage caused by mutilation, other physical injury or death as the result of a crime shall be the subject of State compensat ion to the victim or to other persons defined in Article 1200 of this Code if the person who committed the crime is not identified or is insolvent.

2. The c onditions and procedure governing State compensation for the damage caused by mutilation, other physical injury or death shall be established by law.”

COMPLAINTS

Invoking Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the non-enforcement of the judgment against Mr K. in his favour and refusal of the domestic courts to order the recovery of that judgment debt from the State under Articles 1177 and 1207 of the Civil Code and to elaborate procedure for such compensation. He further complained about unsuccessful attempt to institute criminal proceedings against Mr K.

THE LAW

1. The applicant complained that he had not received any compensation for the damage s sustained as guaranteed by Article s 1177 and 1207 of the Civil Code as no legislation had been enacted to establish the procedure for such compensation . He relied on Article 1 of Protocol No. 1 , which read as follows:

“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 or to secure the payment of taxes or other contributions or penalties.”

The Court reiterates that Article 1 of Protocol No. 1 protects “possessions”, which can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. In particular, this provision does not guarantee the right to acquire property. Where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence. No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts. I n order to create a legitimate expectation, the legal provision relied upon must determine the necessary rules for a claim. If the legal conditions to be met and the other parameters of a claim are not clearly defined, the legal provision in question cannot be said to serve as a basis for a legitimate expectation. At the same time, in a situation where the lack of a procedure governing the payment of compensation was the only obstacle to a person ’ s otherwise clear entitlement to a particular type of compensation under the law, the Court considered that such person could be said to have a claim sufficiently established to be enforceable and could validly claim its recovery against the S tate (see Petlyovanyy v. Ukraine (dec.), no. 54904/08, 30 September 2014, with further references) .

The Court notes that under Articles 1177 and 1207 of the Civil Code the issue of State compensation for the victims of crime is provided in such a way that any claim for such compensation is conditional, those conditions being partly set forth in the first paragraphs of Articles 1177 and 1207, which contain the words “if the person who committed the crime is not identified or is insolvent” . Further conditions are to be established by a separate law which has not been enacted to date. That law should also introduce a procedure for awarding and paying such compensation. It is clearly apparent from these provisions that entitlement to compensation from the State to victims of crime under the above articles of the Code was never intended to be unconditional. Furthermore, the domestic courts have confirmed that in the absence of a law setting forth such conditions no right to compensation can arise under Articles 1177 and 1207 taken alone . In addition to this in the present case, as the domestic courts observed, the conditions set forth in the first paragraphs of Articles 1177 and 1207 were not met by the applicant either.

As the applicant did not have a sufficiently established claim to compensation for the purposes of Article 1 of Protocol No. 1, he cannot argue that he had a “legitimate expectation” of obtain ing any specific sums . It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

2. Invoking Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, the applicant complained about non-enforcement of the judgment against Mr K. in his favour and about his unsuccessful attempt to institute criminal proceedings against Mr K. He further complained under Articles 6 and 13 of the Convention about the refusal of the domestic courts to order the recovery of that judgment debt from the State under Articles 1177 and 1207 of the Civil Code.

I n the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President