FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20668/02 by Vyacheslav Ivanovich BURAK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 23 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 29 April 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, Mr Vyacheslav Ivanovich Burak, is a Ukrainian national who was born in 1961 and lives in Novogrodivka . The respondent Government were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.

A . The circumstances of the case

On 26 March 2001 the Novogrodivka Court ( Новогродівський міський суд Донецької області ) awarded the applicant 4,575.79 hryvnyas (UAH) [1] in salary arrears against the private company С JSC “Vuglevydobutok” (“the Company,” Закрите акц іонерне товариство “ Вуглевидобуток ” ) . This judgment was not appealed against and became final in April 2001.

On 28 March 2001 the Novogrodivka Bailiffs ’ Service (“the Novogrodivka Bailiffs,” Відділ державної виконавчої служби Новогродівського міського управління юстиції Донецької області ) refused to initiate the enforcement proceedings owing to the lack of territorial jurisdiction and instructed the applicant to apply to the Selidovo Bailiffs ’ Service (“the Selidovo Bailiffs,” Відділ державної виконавчої служби Селідівського міського управління юстиції Донецької області ).

Having never submitted the enforcement writ to the Selidovo Bailiffs, the applicant appealed to court, alleging that the institution of the enforcement proceedings in Selidovo would have been futile, as the Company ’ s major assets were located in Novogrodivka.

On 27 June 2001 the Novogrodivka Court rejected these claims, having noted that that the Company ’ s headquarters were located in Selidovo and that contrary to the applicant ’ s assertions it had no assets in Novogrodivka.

On 1 November 2001 the Donetsk Regional Court of Appeal (the “ Regional Court ”, Апеляційний суд Донецької області ) upheld this judgment.

On 4 March 2002 the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation.

On 5 March 2002 the Donetsk Regional Commercial Court ( Господарський суд Донецької області ) initiated bankruptcy proceedings against the Company and on 25 September 2003 declared it bankrupt, having appointed Mr L. as a trustee to run the liquidation program.

On 1 March 2004 the applicant re-submitted the enforcement writ to the Novogrodivka Bailiffs, who returned it instantly , hav ing instructed the applicant t o submit it to the trustee in bankruptcy .

On an unspecified date the applicant requested the trustee to facilitate the enforcement of the judgment given in his favour.

On 26 May 2004 the applicant challenged the trustee ’ s alleged omissions in enforcing the judgment before the Novogrodivka Court . On 29 November 2004 the court rejected his complaints. It found that the trustee had acted in good faith, but the enforcement was impeded by the Company ’ s lack of funds, caused, inter alia , by the failure of the Novogrodivska and the Kurakhivska State-owned mining companies ( ДВАТ шахта “ Новогродівська 1/3 ” and ДВАТ шахта “ Курахі вська” ) to pay off their debts.

On 13 June 2005 the Donetsk Regional Court of Appeal quashed this judgment and remitted the case for a fresh consideration, having found that the first-instance court ’ s analysis was superficial and unsupported by documentary evidence.

The Court has no further information about the proceedings.

As of January 2006 the judgment of 26 March 2001 remained unenforced.

B . Relevant domestic law

The relevant domestic law is summarised in the judgment s of Romashov v. Ukraine no. 67534/01, §§ 16-19, 27 July 2004 and Katsyuk v. Ukraine , no. 58928/00, §§ 29-32, 5 April 2005 ) .

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the failure of the domestic authorities to enforce the judgment given in his favour in due time.

He also complained that the lengthy non-enforcement breached his rights under Articles 2 and 4 § 1 of the Convention and that the domestic courts had incorrectly interpreted facts and law in considering his dispute with the Novogrodivka Bailiffs, having breached Article 6 § 1 of the Convention.

In December 2005, after the case had been communicated to the respondent Government, the applicant additionally introduced a complaint under Article 1 of Protocol No. 1 to the Convention about having been unable to obtain the judgment debt.

THE LAW

1. The Court finds that the applicant ’ s complaint under Article 1 of Protocol No. 1 is not an elabora tion of the original complaints on which the parties have commented. The Court considers, therefore, that it is not appropriate to deal with this matter in the present case.

2. The applicant complained under Article 6 § 1 of the Convention that the judgment of 26 March 2001 against the CJSC “Vuglevydobutok” had not been enforced in due time. He relied on Article 6 § 1 of the Convention, which in so far as relevant provides:

“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 submitted that CJSC “Vuglevydobytok” was incorporated as a private legal entity and that 100% of its shares were owned by two individuals. The State could therefore not be held responsible for the Company ’ s debts. Furthermore, the applicant had neither availed himself of an opportunity to submit the enforcement writ to the competent bailiffs, nor requested to be registered as a Company ’ s creditor in the bankruptcy proceedings. He had therefore not, as required by the Convention, exhausted the available domestic remedies in respect of his complaint.

The applicant disagreed. He maintained that de facto the Company had been created by the management of the Novogrodivska State-owned mine, to dispose off the mine ’ s liabilities in breach of the law. He further noted that the Company had become insolvent due to an intentional failure of the State mines to pay off their debts. Moreover, in his opinion and contrary to the findings of the domestic courts, the Company ’ s convertible assets were, in fact, located in Novogrodivka, and so any recourse to the Selidovo Bailiffs would have been ineffective. The applicant did not comment on the Government ’ s argument concerning his failure to seek registration as a Company ’ s creditor.

The Court reiterates that t he State cannot be considered responsible for the lack of funds of a private company and its responsibility extends no further th a n the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002 ).

Turning to the facts of the present case, the Court notes that, according to the Company ’ s articles of incorporation ( статут ) , it was founded, held and managed by private persons and enjoyed sufficient institutional and operational independence from the State. In the light of the material in its possession, the Court finds no reason to consider the State liable under the Convention for the Company ’ s acts or omissions. The applicant ’ s allegation about the debtor ’ s insolvency having been caused by the failure of the State ‑ owned companies to pay their debts, unsupported by evidence, does not alter this conclusion (see, e.g., Katsyuk v. Ukraine , cited above, §§ 42 ‑ 44). It follows that the State cannot be held directly liable for the judgment debt due to the applicant.

Insofar as the present case may concern the State ’ s positive obligation to enforce a judgment against a private entity (see Fuklev v. Ukraine , no. 71186/01, § § 68 and 84 , 7 June 2005 ), the Court notes that the applicant had a remedy at his disposal to secure the enforcement of the judgment .

The Court agrees with the Government that the applicant could have submitted the enforcement writ to the Selidovo Bailiffs. The Court notes that the applicant had never resorted to this option, open to him after the judgment of March 2001 had become final and until the debtor was declared bankrupt in September 2003. The applicant ’ s personal preference for the Novogrodivka Bailiffs, which had been found unjustified by the domestic courts following adversarial proceedings, as well as his mere doubts as to the effectiveness of the Selidovo Bailiffs ’ intervention into the enforcement process cannot be regarded as a valid excuse for his failure to have had a recourse to the measure at issue (see e.g., Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002).

In view of the above, the Court finds that the applicant has not, as required by the Convention, exhausted the domestic remedies in respect of his complaint. It follows that this part of the application is inadmissible.

3. The applicant additionally invoked Articles 2 and 4 § 1 of the Convention in relation to his complaint about the non-enforcement of the judgment and complained under Article 6 § 1 about the unfair resolution of his argument with the Novogrodivka Bailiffs.

Having carefully examined the applicant ’ s submissions in the light of all the material in its possession and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must likewise be declared inadmissible as being manifestly ill-founded, pursuant to Artic le 35 §§ 3 and 4 of the Convention .

4. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible .

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . EUR 750.