FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38572/03 by Anatoliy Mikhaylovich RODZINSKIY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 29 October 2003,

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 Anatoliy Mikhaylovich Rodzinskiy, is a Ukrainian national who was born in 1941 and lives in the v illage Vysoky, the Kharkiv region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr s V. Lutkovska , succeeded by Mr Y. Zaytsev .

On 14 September 2000 the Kyivsky District Court of Kharkiv ( Київський районний суд м. Харкова ) awarded the applicant 8,000 hryvnyas [1] from the State budget for damage caused by criminal investigation against him terminated on exonerative grounds in April 2000. This decision became final on 25 September 2000 and was transferred for enforcement to the State Treasury, which informed the applicant that the debt would be paid as soon as the Government allocated appropriate funding. In June 2002 the applicant received the payment due to him.

In the meantime, in September 2001 the applicant had lodged a civil complaint against the Cabinet of Ministers seeking damages for its alleged failure to ensure the timely enforcement of the judgment given in his favour.

Having heard both parties, on 1 August 2002 the Pechersky District Court of Kyiv ( Печерсь к ий районний суд м. Києва ) rejected the applicant ’ s claims. It found no basis in the applicable law for the compensation claimed. The applicant appealed, alleging that the first ‑ instance court had misinterpreted his arguments and the applicable law.

On 28 October 2002 the Kyiv City Court of Appeal ( Апеляційний суд м . Києва ) upheld the judgment of 1 August 2002, having held a hearing in the applicant ’ s absence.

The applicant appealed in cassation. In his appeal, he noted that he had not been duly informed of the hearing of 28 October 2002, as the court had sent him the summons by regular mail, which arrived only on 4 November 2002.

On 26 May 2003 the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation. In its decision, the Supreme Court did not refer to the applicant ’ s argument about the deficient notification of the hearing. However, it stated generally that the case did not disclose any misapplication of procedural or substantive law, which could have led to an erroneous decision of the case.

COMPLAINTS

The applicant complained under Article 6 § 1 and 13 of the Convention about the delay in the enforcement of the judgment given in his favour.

He further complained under Article 6 § 1 that his proceedings against the Cabinet of Ministers were unfair . Particularly, the Court of Appeal had not secured the equality of arms and an adversarial process by hearing the case in the applicant ’ s absence, having failed to ensure that he be duly notified of the hearing. Furthermore, the courts of all instances had inadequately or not at all analysed relevant arguments and also ignored and misinterpreted applicable legal provisions.

The applicant further complained under Article 6 § 1 of the Convention that his case against the Cabinet of Ministers had not been disposed of within a reasonable time and that the domestic courts were not independent and impartial, as the defendant in the case was a supreme State entity responsible for the funding of the judicial system.

The applicant also complained under Article 13 about the lack of effective remedies for his complaints under Article 6 § 1 about the proceedings against the Cabinet of Ministers.

Lastly, he invoked Article 3 with regard to the facts of the present case.

THE LAW

1. The applicant complained about the unreasonable delay in the enforcement of the judgment of 14 September 2000 given in his favour. He invoked Article s 6 § 1 and 13 of the Convention, which read, in so far 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 13

“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 submitted that the applicant had never instituted formal enforcement proceedings, which could have facilitated the payment of the judgment debt. Therefore, the applicant had not exhausted the remedies available to him under the domestic law.

The Court recalls that the applicant ’ s award was to be paid out of the State budget and the applicant submitted the judgment for enforcement to the State Treasury, which cited lack of appropriate budgetary allocations as reason for the delay in payment. Under the circumstances, the Court does not find it appropriate to require of the applicant to bring formal enforcement proceedings (see, for example, Lizanets v. Ukraine , no. 6725/03, § 43 , 31 May 2007 ). Moreover, it finds no evidence that the institution of the enforcement proceedings would have remedied the delay (see, mutatis mutandis , Voytenko v. Ukraine , no. 18966/02, § 30 , 29 June 2004 ). The Court therefore dismisses the Government ’ s objection.

However, t he Court recalls that in accordance with Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the date of the final domestic decision, which rule may not be set aside solely becau se a Government have not raised the relevant objection (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I ). The Court further recalls that where no domestic remedy is available, the six ‑ month period runs from the act alleged to constitute a violation of the Convention and where it concerns a continuing situation, it runs from the end of the situation concerned (see e.g., Antonenkov and Others v. Ukraine , no. 14183/02, § 32, 22 November 2005).

In the case at issue, the judgment given in the applicant ’ s favour had been enforced in June 2002, while the application was lodged only sixteen months later, on 29 October 2003. The Court has already found in a number of similar cases lodged against Ukraine that effective domestic remedies in respect of complaints concerning the delay in enforcement of judgments were lacking (see, among many others, Voytenko v. Ukraine , no. 18966/02, § § 46-48 , 29 June 2004 and Nazarchuk v. Ukraine , no. 9670/02, § 29, 19 April 2005 ). There is no reason to depart from this case-law in the present case. In particular, the applicant ’ s proceedings against the Cabinet of Ministers cannot be regarded as an effective domestic remedy, interrupting the running of the six-month period, as the domestic courts rejected the applicant ’ s claims as lacking any basis in domestic law.

In view of the above, the Court finds that the six-month period in the present case began to run in June 2002, when the judgment at issue was enforced. Consequently, the applicant ’ s complaint must be rejected for having been lodged out of time.

2. The applicant further complained about the unfairness and duration of his proceedings against the Cabinet of Ministers, the alleged lack of independence and impartiality of the domestic courts, the alleged lack of effective domestic remedies in respect of his complaint about the unfair proceedings and ill-treatment by the authorities. He invoked Articles 3, 6 § 1 and 13 of the Convention.

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 .

3. 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 1,713.06.