FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 35972/02 and 35980/02 by Aleksey Fedorovich KOROLKOV and Vera Nikolayevna Kamarda against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 6 November 2006 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 applications lodged on 29 April 2002 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility a nd merits of the cases 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

Mr Aleksey Fedorovich Korolkov (“the first applicant”) was born in 1934 and died on 7 February 2005 . His wife, Mrs Valentina Fedorovna Korolkova, expressed her wish to pursue the application of her late husband. Mrs Vera Nikolayevna Kamarda (“the second applicant”) was born in 1931 and lives in Dniprodzerzhynsk. Both applicants were represented by Mr P. Kukta. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska.

I. The circumstances of the case

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

In August 2001 the applicants instituted two separate sets of proceedings in the Zavodskyy District Court of Dniprodzerzhynsk against the State of Ukraine and the President of Ukraine, seeking recovery of their indexed deposits with the State Savings Bank (“the Bank”) made before 2 January 1992, and compensation.

By two judgments of 28 and 30 November 2001, the court ordered the Dnipropetrovsk Regional Department of the Bank to pay, respectively, the second applicant UAH 7,521.19 [1] and the first applicant UAH 1,865.85 [2] , which corresponded to the amounts of their indexed deposits.

The relevant parts of the judgement of 28 November 2001 , in which the court gave reasons for its decision and stated the decision itself, read as follows:

“ ... According to Article 41 of the Constitution of Ukraine, the right to use private property is inviolable. Pursuant to Article 22 of the Constitution of Ukraine, all the laws and normative acts adopted after the Constitution shall not diminish the content and scope of the rights and duties of the citizens, provided for in the Constitution of Ukraine. The provisions of the Constitution have the highest legal force ...

According to Article 2 of the Law of Ukraine on the State Guarantees of Repayment of Deposits of the Citizens of Ukraine, the State undertakes to maintain and update the real value of citizens ’ bank deposits and guarantees compensation pursuant to the relevant rules. The payment of compensation [to Ukrainian citizens] for loss of value of money deposits shall be borne by the State Treasury of Ukraine.

This provision of the Law is decisive for the merits of the [applicant ’ s] claims. In fact, the [State] Savings Bank [of Ukraine ] pleads no defence.

The provisions of Article 7 of the above Law on gradual repayment of the deposits to the citizens of Ukraine concerns the order of enforcement of a court decision on Repayment of an indexed deposit.

Therefore, the claims of Mrs Kamarda for Repayment of the indexed deposit shall be allowed within the limits of the sums, as stated in the compensation accounts ...

Pursuant to ... , the court

Decided:

To order the Dnipropetrovsk Regional Department of the State Savings Bank of Ukraine to pay Mrs Kamarda the indexed deposit from the compensation accounts in the Dnipropetrovsk Regional Department nos. ... [in the amount of] UAH 193.79, UAH 1,503.60 and UAH 5,823.80, as well as to pay the State UAH 51 in respect of the court fees.

To reject the remainder of the [applicant ’ s] claims and [her claim for] compensation for non-pecuniary damage, as well as [her] claims against the Ministry of Justice of Ukraine , the Dniprodzerzhynsk [Town Department of the] State Treasury, and the President of Ukraine.”

The court used similar wording in its judgment of 30 November 2001 .

In December 2001 the applicants lodged with the Zavodskyy District Court their appeals against the judgments of 28 and 30 November 2001 . In January 2002 they withdrew their appeals.

On 21 January 2002 the Zavodskyy District Bailiffs ’ Service of Dniprodzerzhynsk instituted enforcement proceedings.

By two separate decisions of 8 April 2002, the Bailiffs ’ Service discontinued the enforcement proceedings on the grounds that the Dnipropetrovsk Regional Department of the Bank was not a separate legal entity and that it was the Cabinet of Ministers of Ukraine which was competent to establish the order of repayment of the indexed deposits under the Law of Ukraine on the State Budget. The applicants did not challenge these decisions before the domestic courts.

In 2002 the first applicant was paid UAH 50 [3] in repayment of his indexed deposit pursuant to the resolution of the Cabinet of Ministers of Ukraine of 5 April 2002. According to the Government, the first applicant failed to claim UAH 50 [4] to which he was entitled in 2003. In December 2002 and August 2003 the second applicant received a total of UAH 100 [5] pursuant to the resolutions passed by the Cabinet of Ministers concerning repayment of indexed deposits to the citizens of Ukraine in 2002 and 2003. There is no information in the case file whether further payments were made in respect of the judgments of 28 and 30 November 2001.

II. Relevant domestic law

A. Constitution of Ukraine , 1996

Article 124 of the Constitution provides as follows:

“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine .”

B. Law of Ukraine of 21 April 1999 on Enforcement Proceedings

Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs ’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs ’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person responsible for the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.

C. Law of Ukraine of 24 March 1998 on the State Bailiffs ’ Service

Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.

D. Law of Ukraine of 21 November 1996 on the State Guarantees of Repayment of Deposits of the Citizens of Ukraine

Pursuant to Article 1 of the Law, the State undertakes to pay the citizens of Ukraine compensation for the loss of their money deposited before 2 January 1992 with, inter alia, the branches of the Savings Bank of the USSR, which carried out business on the territory of Ukraine. T he Ukrainian citizens, who deposited their money with the Savings Bank and the State Insurance Company of Ukraine in 1992-1994, are entitled to compensation, provided that the money has remained in the accounts of the Savings Bank of Ukraine for at least one full year between 1992 and 1995.

Article 7 of the Law provides that the money deposits shall be repaid gradually, taking into account the amount of the deposits, within the limits of funds, allocated for that purpose in the State Budget of Ukraine for a given year.

E. Resolutions of the Cabinet of Ministers of Ukraine concerning repayment of indexed deposits

The persons eligible for repayment of their deposits were defined in regulations approved each year by the Cabinet of Ministers for the forthcoming year. For instance, on 5 April 2002 the Cabinet passed a resolution concerning the repayment in 2002 of the value of deposits made by the Ukrainian citizens before 2 January 1992 in branches of the former Savings Bank of the USSR , which carried out business on the territory of Ukraine . By that resolution, the Government allocated UAH 500,000,000 [6] from the national budget to enable individual deposits to be indexed. Of that amount, UAH 65,000,000 [7] was allocated to the heirs of account holders who had died between 1997 and 2002, on condition that they had not yet received the grant available under Article 8 of the Law of 21 November 1996 . The remaining UAH 435,000,000 [8] was to be divided between the other account holders. The amount payable to each beneficiary was, in principle, limited to UAH 50 [9] . The Cabinet passed similar resolutions in respect of 2003-2005.

COMPLAINTS

The applicants complained about the non-enforcement of the judgments of the Zavodskyy District Court o f Dniprodzerzhynsk of 28 and 30 November 2001. They invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1. They also complained under the same provisions of the Convention about the domestic courts ’ failure to award them higher sums in respect of reimbursement of their indexed deposits.

THE LAW

I. JOINDER OF THE APPLICATIONS

Pursuant to Rule 42 § 1 of the Rules of Court, the Court joins the applications, given their common factual and legal background.

II. AS TO THE LOCUS STANDI OF MRS KOROLKOVA

The Court notes the fact of the first applicant ’ s death, and the wish of his widow, Mrs Korolkova, to pursue the proceedings he initiated.

The Court further notes that the application of Mr Korolkov concerns a pecuniary right which is in principle transferable to the heirs. In these circumstances the Court considers that the widow of the applicant has standing to continue the present proceedings in his stead. However, reference will still be made to the applicant throughout the ensuing text.

III. SCOPE OF THE CASE

The Court observes that, after the communication of the case to the respondent Government, Mrs Korolkova introduced a complaint about the alleged failure of the domestic authorities to repay her own indexed deposits.

The Court observes that the above complaint is essentially the same as her previous application (no. 20595/03), which the Court rejected on 7 September 2004 , and that it contains no relevant new information. Accordingly, this complaint is not an elaboration of the original complaints of Mr Korolkov to the Court. The Court considers, therefore, that it is not appropriate to deal with this matter in the present case.

IV. COMPLAINTS ABOUT THE NON-ENFORCEMENT OF THE JUDGMENTS OF 28 and 30 November 2001

The applicants complained about the State authorities ’ failure to pay the amounts awarded by the judgments of the Zavodskyy District Court of Dniprodzerzhynsk of 28 and 30 Novembe r 2001 in full and in due time. They invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, insofar 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.”

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 submitted that the applicants had not challenged the decisions of the Bailiffs ’ Service, discontinuing the enforcement proceedings, before the domestic courts. The Government therefore contended that the applicants had not exhaust ed, as required by Article 35 § 1 of the Convention, the remedies available to them under Ukrainian law. The Government maintained that such remedies were effective both in theory and in practice.

The Government further contended that the judgments in the applicants ’ favour were being duly enforced. They submitted that the amounts awarded by the judgments of 28 and 30 November 2001 had been partially paid to the applicants in accordance with Article 7 of the Law of Ukraine of 21 November 1996 on the State Guarantees of Repayment of Deposits of the Citizens of Ukraine. In particular, the first applicant received UAH 50 [10] and the second applicant received UAH 100 [11] .

The applicants did not contest the fact that they had been paid the compensation amounts, referred to by the Government. The applicants however contended that they should have been paid the full amounts of the awards immediately.

The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State ’ s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece , judgment of 19 March 1997, Reports 1997-II, p. 510, § 40).

Turning back to the facts of the present case, the Court notes that the Zavodskyy District Court held in its judgments of 28 and 30 November 2001 that Article 7 of the Law of Ukraine of 21 November 1996 on the State Guarantees of Repayment of Deposits of the Citizens of Ukraine, which envisaged gradual recovery of indexed deposits, governed the order of enforcement of these judgments.

The Court observes that the applicants did not dispute that the awards had been partially paid to them pursuant to the gradual recovery procedure. The applicants essentially complained that they had not been paid the full amounts immediately, under the ordinary enforcement procedure.

The Court further observes that the Bailiffs ’ Service took a different view as to how the judgments were to be enforced, which corresponded to the reasoning given by the Zavodskyy District Court for its judgments.

The Court recalls that it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve the problems of the interpretation of domestic law and the assessment of fact (see, among many other authorities, Pérez de Rada Cavanilles v. Spain , judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, § 43 ).

The Court finds no indication that the domestic authorities , including the Zavodskyy District Court and the Bailiffs ’ Service, acted arbitrarily or otherwise unreasonably. The Court observes that the domestic court ’ s ruling concerning the order of enforcement of the judgments of 28 and 30 November 2001 reflected the general practice of gradual repayment of the indexed deposits with the State Saving Bank, which was envisaged by the Law of 21 November 1996 (see Gayduk and Others v. Ukraine (dec.), nos. 45526/99 and foll., ECHR 2002 ‑ VI (extracts) ). Accordingly, the Court concludes that the applicants have not established sufficient elements to cast doubt on the conclusion that the judgments have been adequately enforced in their present state.

In sum, the Court finds that the applicants ’ complaints about the non ‑ enforcement of the judgments of 28 and 30 November 2001 do not disclose any appearance of a violation of Article 6 § 1 or 13 of the Convention (see Gayevskiy v. Ukraine (dec.), no. 60725/00, 11 January 2005) . It follows that they must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court also considers that, in the circumstances of the instant case, the reasons which led it to reject the complaints under Articles 6 § 1 and 13 of the Convention are equally pertinent to the applicants ’ allegations of a violation of Article 1 of Protocol No. 1 in respect of the non-enforcement of the same judgments (see, mutatis mutandis , Ganenko v. Ukraine (dec.) , no. 27184/03, 11 January 2005). The Court therefore rejects the applicants ’ complaints under the latter provision pursuant to Article 35 §§ 3 and 4 of the Convention.

V. OTHER COMPLAINTS

The applicants complained about the domestic courts ’ failure to award them higher sums of indexed deposits. They invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

The Court observes that the applicants first appealed against the judgments of 28 and 30 November 2001 and then they withdrew their appeals. Therefore, the applicants cannot be regarded as having exhausted the domestic remedies available to them under Ukrainian law. It follows that their above complaints must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the applications inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . Around 1,673 euros – “EUR”.

[2] . Around EUR 415.

[3] . Around EUR 11.

[4] . Around EUR 11.

[5] . Around EUR 22.

[6] . Around EUR 111,173,747 .

[7] . Around EUR 14,452,587 .

[8] . Around EUR 96,721,160 .

[9] . Around EUR 11.

[10] . Around EUR 11.

[11] . Around EUR 22.