SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13243/02 by Anatoliy Anatoliyovych POPOV against Ukraine

The European Court of Human Rights (Second Section), sitting on 8 July 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 20 June 2001,

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, Anatoliy Anatoliyovych Popov , is a Ukrainian national, who was born in 1954 and resides in the town of Chervonograd , Ukraine.

A. The circumstances of the case

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

Between 1982 and 1997 the applicant worked as a miner at the “ Chervonogradska ” mining factory No. 2 - the State Open Stock Company. On 4 March 1997, following a medical examination, the applicant was recognised as an invalid due to an occupational disease. By an order of 8 May 1997 by his employer, the applicant was awarded a lump sum of 19382.55 Ukrainian hryvnyas (UAH) and monthly payments of 193.82 UAH. By another order of 31 May 2000, the monthly payments were increased to 283.41 UAH.

The awarded lump sum of 19382.55 UAH was never paid to the applicant and the monthly payments were recovered only in part.

In 1998 the applicant instituted proceedings in the Chervonograd City Court of L’viv Region against his former employer to recover all the payments due to him.

On 10 March 1998, the court found in favour of the applicant ( Рiшення Червоноградського мiського суду ). The mining company was ordered to pay the applicant 20640.47 UAH. The decision became effective and, on 23 March 1998, was sent for execution to the mining company and later transferred for enforcement to the Chervonograd Bailiffs’ Service ( вiддiл Державноï виконавчоï служби Червоноградського мiського управлiння юстицiï ).

The part of the judgment on the monthly payment of arrears was fully executed in December 2000 and the related enforcement proceedings were closed on 21 December 2000.

The part of the judgment on the lump sum for the applicant’s disability was fully executed in October 2002, and the enforcement proceedings were closed on 4 October 2002.

B. Relevant domestic law

1. Civil Code of Ukraine

Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim of the creditor, pay the amount of the debt, plus any interest payable at an established inflation rate during the default period.

2. 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 of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against the Bailiffs’ Service for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.

3. 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, and compensation for damages 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.

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 to the Convention that the State had infringed his right to the peaceful enjoyment of his possessions. The applicant further alleged that the judgment in his favour had not been enforced and, therefore, his recourse to the court for debt redemption could not be considered an effective remedy. He invokes Article 13 of the Convention. The latter allegations raised in substance an issue under Article 6 § 1 of the Convention. He finally complains that the inactivity of the State Bailiffs’ Service led to long delays in the recovery of payments due to him and he requests compensation for this.

THE LAW

The applicant complained under Article 13 of the Convention and Article 1 of Protocol No.1 of the alleged non-enforcement of the judgment of the Chervonograd City Court of L’viv Region of 10 March 1998. The application raises in substance an issue under Article 6 § 1 of the Convention. The applicant also complains of the length of the enforcement proceedings in his case.

Article 6 § 1 of the Convention provides as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time ... by [a] ... tribunal...”

Article 13 of the Convention provides as relevant:

“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 provides as relevant:

“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 Court notes that the applicant’s complaints are in two parts which will be examined separately.

1. Non-enforcement of the judgment in the applicant’s favour

In his application and further correspondence, the applicant maintains that the non-enforcement of the judgment in his favour indicated that his recourse to the domestic courts proved to be ineffective and, therefore, there was no effective remedy for the protection of his property rights under Article 1 of Protocol No. 1.

The Court notes that as a result of the domestic court proceedings the applicant received an enforceable court decision in his favour. The Court recalls its case-law according to which the “right to a court” 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, and that execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 (see the Burdov v. Russia judgment, no. 59498/00, §§ 33-38, 7 May 2002). The Court considers that Article 6 § 1 of the Convention takes precedence as the lex specialis for the issues of non-enforcement of judgments, so that it is unnecessary to examine the issue under Article 13 separately (see the Jasiūnienė v. Lithuania judgment, no. 41510/98, § 32, 6 March 2003).

In its observations, the respondent Government maintained that the applicant could no longer claim to be a victim of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 since the judgment of 10 March 1998 had been fully executed. The applicant confirmed this in his subsequent observations.

The Court recalls its case-law that, if the applicant receives redress at the domestic level for an alleged violation of the Convention, he can no longer claim to be a “victim” of a violation by one of the Contracting States

In the light of the developments in the present case, the Court considers that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of a violation of his right to have the judgement in his favour executed. It concludes, therefore, that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected under Article 35 § 4 of the Convention.

2. Length of enforcement proceedings

The Government submitted that the applicant did not challenge the actions or omissions of the bailiffs before the domestic courts and, therefore, did not exhaust, as required by Article 35 § 1 of the Convention, the remedies available under Ukrainian law. The Government maintained that such remedies were effective both in theory and in practice.

The applicant contests this submission and submits, without further specification, that the domestic remedies are not effective.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see İlhan v. Turkey [GC], no. 22277/93 , § 58, ECHR 2000-VII).

The Court notes that the Ukrainian legislation provides for a possibility to challenge before the courts the lawfulness of actions and omissions of the State Bailiffs’ Service in enforcement proceedings and to claim damages from the State Bailiffs’ Service for the delays in payment of the awarded amount (see the Relevant domestic law part). In the present case, the applicant did not apply to any domestic court against the Bailiffs’ Service to claim compensation for the delays in payment of the amount awarded to him by the judgment of the Chervonograd City Court of L’viv Region on 10 March 1998. The Court recalls that the existence of mere doubts as to the prospects of success of a particular remedy, which is not obviously futile, is not a valid reason for failing to exhaust domestic remedies (see Vorobyeva v. Ukraine , no. 27517/02, dec. 17 December 2002). The applicant accordingly cannot be regarded as having exhausted all the domestic remedies available to him under Ukrainian law. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President