FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22312/03 by Valentina Borisovna ANDREYENKO and Others against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 19 June 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 , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 28 May 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The first and the second applicant s , Mrs Valentina Borisovna and Mr Aleksandr Nikolayevich Andreyenko, were born in 1949. The third applicant, Mrs Olga Aleksandrovna Kutsenko, was born in 1974. The applicants are Ukrainian nationals and live in the town of Dniprodzerzhynsk .

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

In December 2000 the applicant s lodged with the Zavodskyi District Court of Dniprodzerzhynsk (hereinafter “the Zavodskyi Court ) civil claims against the President of Ukraine, the State Savings Bank (hereinafter “the Bank”), and the State Treasury seeking recovery of their indexed deposits in the Bank and compensation for non-pecuniary damage . On 5 June and 8 July 2002 the court found in part for the applicants and ordered the Dnipropetrovs ’ k Department of the Bank to pay them, respectively, UAH 11,740, UAH 2,847 and UAH 11,692 [1] in reimbursement of the indexed bank deposits.

According to the Government, the Bank appealed on 24 July 2002. In the third applicant ’ s case, on 29 July 2002 the Zavodskyi Court rejected the appeal of the Bank for failure to lodge it within the statutory time-limit; however, on 13 February 2003 the Dnipropetrovs ’ k Regional Court of Appeal (hereinafter “the Court of Appeal”) allowed the appeal of the Bank and granted an extension of the time-limit for lodging its appeal against the judgment of 5 June 2002.

On 14 November 2002 and 19 June 2003 the Court of Appeal quashed the judgments of 5 June and 8 July 2002 and remitted the cases for a fresh consideration. The applicants did not appeal in cassation .

On 26 March 2003 the Zavodskyi Court left the first and the second applicants ’ claim without consideration for failure to appear before the court. On 22 May 2003 the court left the applicants ’ appeal without consideration and allowed them time to rectify the shortcomings. On 17 June 2003 the applicants ’ appeal was returned without consideration for failure to comply with the ruling of 22 May 2003. The applicants did not appeal against this procedural decision.

On 2 March 2004 the Zavodskyi Court left the third applicant ’ s claim without consideration for failure to appear before the court. The applicant did not appeal against this ruling.

Enforcement proceedings in respect of the judgment s in the applicant ’ s favour

On 10 July and 9 August 2002 the Bailiffs ’ Service (hereinafter “the Bailiffs”) instituted the enforcement proceedings in respect of the judgments of the Zavodskyi Court in the applicants ’ favour. On 21 August 2002 the Bailiffs discontinued the enforcement proceedings on the grounds that the debtor was not a separate legal entity and that the order of reimbursement of the indexed deposits should be established by the Cabinet of Ministers under the Law of Ukraine on the State Budget. The applicants did not challenge these decisions before the domestic courts.

COMPLAINTS

The applicants complained under Article 13 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgments of the Zavodskyi Court in their favour. They further complained about the unfairness and outcome of the proceedings before the domestic courts. The applicants also complained under Article 1 of Protocol No. 1 that their right to the peaceful enjoyment of possessions was violated as a result of the failure of the courts and other domestic authorities to reimburse their indexed deposits. The applicants finally complained under Article 14 of the Convention about being discriminated.

THE LAW

1. The applicants complained under Article 13 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgments of the Zavodskyi Court of 5 June and 8 July 2002. The se provisions read , insofar as relevant, as follows:

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.”

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. ”

The Government maintained that the applicant s could no t claim to be the victim s of the violation of Article 13 of the Convention and Article 1 of Protocol No. 1 , since the judgment s of 5 June and 8 July 2002 were not the final decisions in the sense of Article 35 of the Convention.

The applicant s maintained their complaints about the State authorities ’ failure to enforce the above judgments.

The Court observes that the judgments in the applicants ’ favour became final and the Bailiffs commenced the enforcement proceedings. The Court further observes that, although the enforcement proceedings were discontinued on 21 August 2002, the above judgments had remained enforceable until they were quashed by the Court of Appeal.

The Court concludes that the applicants may still claim to be the “victim s ” , within the meaning of Article 34 of the Convention , in respect of their complaints about the failure to enforce the judgments . Accordingly, the Court dismisses the Government ’ objection .

The Court further notes that the above complaint concerns two different periods of time, in particular, when the judgments at issue were enforceable and after they were quashed by the Court Appeal. Therefore, the complaint should be examined separately in respect of each period.

a) Non-enforcement of the judgments in the applicants ’ favour before their quashing by the Court of Appeal

In their observations, the Government submitted that the applicants did not challenge the Bailiffs ’ decisions to discontinue the enforcement proceedings before the domestic courts and, therefore, had not exhaust ed , as required by Article 35 § 1 of the Convention, the remedies available to them under Ukrainian law.

The applicants did not comment on this.

The Court observes that the enforcement proceedings in respect of the judgments in the applicants ’ favour commenced on 10 July and 9 August 2002 and these judgments had been enforceable until they were quashed by the Court of Appeal.

Therefore, the periods during which the judgments remained unenforced lasted four and eleven months, respectively. The Court notes that, given its findings in previous similar cases against Ukraine (see, for instance, Kornilov and Others v. Ukraine (dec.) , no. 36575/02, 7 October 2003), these periods are not so excessive as to disclose any appearance of a breach of Article 1 of Protocol No. 1 or any other Convention right.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.

b) The quashing of the judgments in the applicants ’ favour

The Government argued that the applicant s had not appealed in cassation against the decisions of the Court of Appeal to quash the judgments in their favour and that they had failed to appeal against the rulings of the Zavodskyi Court of 17 June 2003 and 2 March 2004 according to which their claims were left without consideration and, therefore, they had not exhaust ed , as required by Article 35 § 1 of the Convention, the remedies available to them under Ukrainian law.

The applicant s argued that t he y had failed to appeal against the rulings of 17 June 2003 and 2 March 2004 as the said rulings were not sent to them in due time .

T he Court observes that the decision of a domestic court to grant a State institution an extension for lodging an appeal after the judgment had become final may give rise to problems of legal certainty (see, mutatis mutandis , Ryabykh v. Russia , no. 52854/99, § 49, ECHR 2003-X) . The Court , however, notes that the applicant s failed to appeal in cassation against the decision s of the Court of Appeal of 14 November 2002 and 19 June 2003. Furthermore, the y did not attempt to appeal or to apply for leave to appeal out of time against the rulings of the Zavodskyi Court of 17 June 2003 and 2 March 2004 , which t he y w ere free to do under the domestic law.

In that respect, the applicants cannot be regarded as having exhausted all the domestic remedies available to them under Ukrainian law.

It follows that th is part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicants further complained about the unfairness and outcome of the proceedings before the domestic courts.

As stated above, the applicants failed to appeal in cassation against the decisions of the Court of Appeal to quash the judgments in their favour and they did not appeal against the rulings of the Zavodskyi Court of 17 June 2003 and 2 March 2004 . Accordingly, the applicants ha ve not exhausted , as required by Article 35 § 1 of the Convention, the remedies available to them under Ukrainian law .

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

3. The applicants also complained under Article 1 of Protocol No. 1 that their right to the peaceful enjoyment of possessions was violated as a result of the failure of the courts and other domestic authorities to reimburse their indexed deposits.

The Court recalls that it has previously held that the recovery of indexed deposits is not a matter protected by the Protocol and, accordingly, was outside the Court ’ s competence ratione materiae (see Gayduk and Others v. Ukraine (dec.) , no. 45526/99, decision of 2 July 2002 ). The Court finds no reason to distinguish the present case from the previous decision.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

4. The applicants finally complained under Article 14 of the Convention about discrimination.

The Court recalls that Article 14 of the Convention may only be applied in conjunction with another Article of the Convention or of its Protocols (see Polacek and Polackova v. the Czech Republic (dec.), no. 38645/97, 10 July 2002). Anyway, t he circumstances of the case reveal no appearance of discrimination against the applicant s .

It follows that th is part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

5. The Court decides 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 2,417, 586 and 2,407, respectively