FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17696/02 by Leonid Ivanovich BALYUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 4 September 2007 as a Chamber composed of:

Mr P. 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 25 March 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 partial decision of 6 September 2005 ,

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 Leonid Ivanovich Balyuk, is a Ukrainian national who was born in 1957 and resides in the town of Mukachevo , Zakarpattya Region , Ukraine . The Ukrainian Government (“the Government”) were represented by their Agent s , Mrs V. Lutkovska and Mr Y. Zaytsev .

A. The circumstances of the case

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

In April 2001 the applicant instituted proceedings in the Mukachevo Town Court against Mr S., a private person, seeking recovery of a debt.

On 3 May 2001 the court restricted Mr S. ’ s right to dispose of his property in order to secure the applicant ’ s claim. However, on 17 May 2001 some of Mr S. ’ s property (part of an apartment) was sold to Mrs B.

On 13 June 2001 the court found for the applicant and awarded him 7,027 [1] Ukrainian hryvnas (UAH) against Mr S. On 23 October 2001 the Zakarpattya Regional Court of Appeal upheld this judgment and it became final.

Th e judgment of 13 June 2001 was not enf orced allegedly due to Mr S. ’ s lack of funds .

In December 2001 the applicant instituted proceedings in the same court against Mr S., Mrs B. and the Mukachevo Notary Office No. 1 , s ee king to invalidate the apartment sales agreement. On 11 February 2002 the c ourt found that the agreement wa s valid. In particular, the court found that the injunction on the sale of the disputed apartment had only been forwarded to the notary on 17 May 2001 and therefore , at the material time , the notary had acted in good faith . On 27 May 2002 the Supreme Court of Ukraine upheld this judgment.

By letters of 24 May and 10 December 2002 , the Zakarpattya Regional Prosecutor ’ s Office informed the applicant that, because of the court ’ s negligence , the decision of 3 May 2001 had only been received by the Bailiffs ’ Service and the notary on 24 May 2001 .

In March 2002 the applicant instituted proceedings in the Mukachevo Town Court against the Bailiffs ’ Service for an allegedly improper enforcement of the judgment of 13 June 2001 . On 3 June 2002 the court rejected the applicant ’ s complaint for having been submitted out of time . On 3 September 2002 the Zakarpattya Appellate Court quashed this decision and remitted the case for a fresh consideration.

On 3 December 2002 the court returned the applicant ’ s complaint without consideration because it did not comply with the procedural requirements prescribed by law. The applicant neither appealed against this decision, nor lodged his complaint anew .

On 17 April 2002 the applicant revoked the writ of enforcement and the enforcement proceedings were closed. The applicant states that there was no sense in continuing the enforcement proceedings because the Bailiffs ’ Service was inactive and Mr S. had no assets to seize.

B. Rele vant domestic law

Code of Civil Procedure, 1963

At the material time Article 156 of the Code provided that a decision to secure a claim should be enforced immediately in accordance with the procedure for the enforcement of judgments.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the failure of the court to implement its decision to secure his claim.

THE LAW

I. SCOPE OF THE CASE

The Court notes that, after the communication of the case to the respondent Government, the applicant introduced a number of new complaint s under Articles 2, 14 and 17 of the Convention, alleging that he and his mother were discriminated and persecuted by the State authorities, in particular, because the applicant had lodged a present application with the Court .

In the Court ’ s view, the new complaint s are not an elaboration of the applicant ’ s original complaint , lodged with the Court approximately three years earlier, on w hich the parties have commented . The Court considers, therefore, that it is not appropriate now to take th is matter up separately (see Piryanik v. Ukraine , no. 75788/01, § 20, 19 April 2005 ).

II. ADMISSIBILITY

The Government maintained that the consideration by the court of the applicant ’ s request to secure his claim and subsequent enforcement of the court decision on this matter did not concern the determination of the applicant ’ s civil rights and obligations. The Government argued that the relevant proceedings did not include important elements of a fair hearing as in the case of a civil dispute, e.g. the public and adversarial character of the proceedings; therefore, the applicant ’ s request to secure his claim could not be rated as a dispute. Thus, the Government maintained that Article 6 of the Convention was not applicable in the instant case.

The Government further stated that the applicant failed to exhaust the available domestic remedies in respect to his complaints. In particular, the Government submitted that the applicant had been aware of the decision of 3 May 2001 and, being interested in its implementation, could have brought it to the relevant authorities himself.

The applicant did not submit any observations in this respect.

The Court recalls that in several cases the former European Commission of Human Rights had held that interim measures proceedings did not determine “civil rights and obligations” within the meaning of Article 6. Nevertheless, under certain circumstances it may be argued that the combined effect of an interim measure and its duration may cause irreversible prejudice to an applicant ’ s interests and drain to a substantial extent the final outcome of the main proceedings of its significance. In such circumstances, the Court considered that an interim decision in effect partially determined the rights of the parties in relation to the final claim and thereby acquired the character of a “dispute” over a civil right and obligation to which Article 6 of the Convention was applicable (see, Markass Car Hire Ltd v. Cyprus , no. 51591/99, (dec.) 23 October 2001) . Likewise it might be argued that defects in implementing an interim decision may cause irreversible prejudice to the applicant ’ s interests and have a decisive impact on the main proceedings.

It is true that in the present case the interim decision ordering the defendant not to dispose of part of his property with a view to secure the applicant ’ s claim to be decided in the main proceedings was served belatedly. In the meantime, the defendant had disposed of part of apartment owned by him. Nevertheless, the Court cannot conclude that this procedural shortcoming caused irreversible prejudice, as the dispute concerned a merely pecuniary claim and the applicant revoked the writ of enforcement six months after the judgment in his favour became final without showing that enforcement proceedings were devoid of any purpose and had never reintroduced it. In this context the Court also notes that the applicant did not properly pursue the proceedings against the Bailiffs. Moreover, he did not institute proceedings against the court seeking to establish a causal link between their failure to send their interim decision in due time and the ultimate non-enforcement of the judgment in his favour. Accordingly, Article 6 does not apply to the proceedings to the extent that they concerned the interim decision regard ing the defendant ’ s apartment.

Furthermore, the Court , having regard to the above findings, considers that the applicant ’ s complaint about the failure of the court timely to implement its inter im decision interfered neither with his “existing possessions ” nor assets, including claims, within the meaning of Article 1 of Protocol No. 1 (see, for example, Ouzounis and Others v. Greece , no. 49144/99, 18 April 2002, § 24).

It follows that the application is inadmissible ratione materiae and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the a pplication inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] At the material time approximately 1,533.9 0 euros (EUR)