SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60750/00 by Anatoliy Afanasiyovych SHMALKO against Ukraine

The European Court of Human Rights (Second Section), sitting on 6 May 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze , judges , Mr T . L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 21 October 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anatoliy Afanasiyovych Shmalko , is a Ukrainian national, who was born in 1930 and lives in Dnepropetrovsk .

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

1. Proceedings concerning indexed deposits recovery

In October 1999 the applicant instituted proceedings in the Krasnogvardeysky District Court of Dnepropetrovsk against the Krasnogvardeysky State Treasury Department and the Dnepropetrovsk Regional Department of the State Savings Bank, seeking to recover his deposits with the State Savings Bank and compensation for moral damage.

On 19 November 1999 the Krasnogvardeysky District Court of Dnepropetrovsk rejected his claims as unsubstantiated.

The applicant lodged a cassation appeal against this decision on 25 September 2000.

On 9 October 2000 the Krasnogvardeysky District Court of Dnepropetrovsk refused to consider his cassation appeal as it had been lodged one month after the expiry of the relevant time-limit. On 13 November 2000 the Dnepropetrovsk Regional Court upheld that decision.

On 25 December 2000 the President of the Dnepropetrovsk Regional Court refused to initiate a supervisory review of the proceedings in the applicant’s case. Subsequently, however, on 14 February 2001, the President of the Dnepropetrovsk Regional Court, following the instructions of the Deputy President of the Supreme Court of Ukraine, decided to initiate supervisory proceedings in the applicant’s case by lodging a protest against the decision of 19 November 1999 with the Presidium of the Dnepropetrovsk Regional Court.

On 7 March 2001 the Presidium of the Dnepropetrovsk Regional Court allowed the protest lodged by its President and quashed the decision of 19 November 1999. The case was remitted for fresh consideration.

On 27 April 2001 the Krasnogvardeysky District Court of Dnepropetrovsk rejected the applicant’s claims as being unsubstantiated.

On 28 May 2001 the Dnepropetrovsk Regional Court upheld this decision.

2. Proceedings against the DFK company

On 7 April 1996 the Kirovsky District Court of Dnepropetrovsk ordered the DFK company (as debtor) to pay the applicant 176,800,000 krb . [**] and 50,000,000 krb . in compensation for material and moral damage.

The execution proceedings in the applicant’s case were initiated on 11 June 1996.

On 26 June 1996 the writ of execution was transferred to the bank for further payment. However, judgment was not executed in 1996 due to the debtor’s lack of funds and property.

On 19 December 1997 the Department of Justice in the Dnepropetrovsk Region (“DJD”) informed the applicant that the judgment of 7 April 1996 could not be executed due to the debtor’s lack of funds. It also informed the applicant that a criminal investigation into the alleged embezzlement of funds by the management of the debtor had been initiated in 1995. It advised the applicant to apply to the competent law enforcement bodies to establish his status as a victim of embezzlement.

On 27 February 1998 the DJD informed the applicant that the judgment could not be executed since the debtor had ceased to exist. It also informed him that a Resolution of the Parliament prohibited the attachment of property and finances until new legislation on the recovery of trust deposits had been adopted.

On 25 December 1998 the DJD informed the applicant that the judgment of 7 April 1996 could not be executed due to the debtor’s lack of funds and the pending criminal investigation.

3. Failure to provide a pension of a particular amount to the applicant

In 1992 the Parliament of Ukraine introduced the Law on Pensions. By virtue of this law the applicant’s pension was allegedly decreased from 120 Soviet Rubles to UAH 59.86.

4. Compensation proceedings for the non-distribution of the prescription drug Kalimin-60

In March 1999 the applicant instituted proceedings in the Babushkinsky District Court of Dnepropetrovsk against the Dnepropetrovsk City Health Protection Department (“HPD”) and the Dnepropetrovsk City Hospital No. 1, seeking compensation for moral and material damage caused by their refusal between 1996-1998 to provide him with the prescription drug Kalimin-60. In particular, he complained that because this drug was not provided to him he had to buy it in Moscow, Germany and the United Kingdom. He therefore requested reimbursement of this expense.

On 29 September 2000 the Babushkinsky District Court of Dnepropetrovsk rejected the applicant’s claims as being unsubstantiated. It found that the HPD and the Dnepropetrovsk City Hospital No. 1 could not be held responsible for the failure to provide the drug because it was not available in the Dnepropetrovsk Region.

On 13 November 2000 the Dnepropetrovsk Regional Court quashed the decision of 29 September 2000 and remitted the case for fresh consideration.

On 22 February 2001 the Babushkinsky District Court of Dnepropetrovsk rejected the applicant’s claims as being unsubstantiated.

On 26 March 2001 the Dnepropetrovsk Regional Court quashed the decision of 22 February 2001 and again remitted the case.

On 13 July 2001 the Babushkinsky District Court of Dnepropetrovsk rejected the applicant’s claims as being unsubstantiated.

On 10 October 2001 the applicant lodged an appeal with the Dnepropetrovsk Regional Court of Appeal under the new procedure introduced by the Code of Civil Procedure on 21 June 2001. On 29 November 2001 the Dnepropetrovsk Regional Court of Appeal allowed the applicant’s claims in part. The court ordered HPD to pay the applicant UAH 722,70 and UAH 750 in compensation for material and moral damage respectively. It also ordered the Dnepropetrovsk City Hospital No. 1 to pay the applicant UAH 393.65 and UAH 750 in compensation for material and moral damage respectively.

On 27 May 2002 a panel of three judges of the Supreme Court of Ukraine rejected the cassation appeal lodged by the Chief doctor of the Dnepropetrovsk City Hospital No. 1, as being unsubstantiated.

On 21 October 2002 the applicant informed the Court that the judgment of 29 November 2001 had not been executed due to the lack of funds.

COMPLAINTS

The applicant complains about his inability to recover his indexed deposits with the State Savings Bank of Ukraine and the failure of the domestic courts to award their recovery. He alleges an infringement of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

The applicant complains about the failure of the State authorities to execute the decision of 7 April 1996 against the DFK company. He submits that the State should be held liable for the debts of the company. The applicant again relies on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

The applicant complains about the refusal of the State authorities to provide him with a pension of a particular amount. He does not refer to any specific provision of the Convention.

The applicant next complains about the non-execution of the judgment of 29 November 2001 judgment issued by the Dnepropetrovsk Regional Court of Appeal. He alleges a further infringement of Article 6 § 1 of the Convention.

Finally, the applicant complains of a breach of Articles 3 and 13 of the Convention without giving any details.

THE LAW

1. The applicant complains about his inability to recover his indexed deposits with the State Savings Bank of Ukraine and the refusal of the domestic courts to award their recovery. He alleges a violation of Article 1 of Protocol No. 1 to the Convention and Articles 6 § 1 of the Convention, which provide as follows:

“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 or to secure the payment of taxes or other contributions or penalties.”

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

As regards the complaint under Article 1 of Protocol No. 1, the Court has previously held that this is not a matter protected by the Protocol and, accordingly, was outside the Court’s competence ratione materiae (see Gayduk and Others v. Ukraine [GC] , 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.

     As to the applicant’s complaints about the allegedly erroneous refusal of the domestic courts to order the recovery of the indexed deposits held by the State Savings Bank of Ukraine (Article 6 § 1 of the Convention), the Court considers that this matter relates to the manner in which the domestic courts assessed the evidence before them and applied the relevant legislation. However, it is not its task to review alleged errors of fact and law committed by domestic judicial authorities, but to ascertain whether the proceedings as a whole were fair (see the Mantovanelli v. France judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, pp. 436–37, § 34).

On the basis of the applicant’s submissions and the material in the case-file, the Court finds no appearance of any breach of Article 6 § 1 in connection with the above proceedings. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains about the failure of the domestic authorities to execute the judgment of 7 April 1996 awarded in his favour against the DFK company. He relies on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

The Court recalls that, according to Article 34 of the Convention, it can only deal with applications alleging a violation of the rights guaranteed by the Convention claimed to have been committed by State bodies. The Court has no jurisdiction to consider applications directed against private individuals or businesses (see, among other authorities, Scientology Kirche Deutschland e V. v. FRG , no.34614/96, Commission decision of 7 April 1997, Decisions and Reports 89A, p. 171 and Sevo v. Croatia , no. 53921/00, decision of 14 June 2001). The Court finds that in this particular case the judgment against the DFK company (a privately owned business) was not executed due to the company’s lack of funds.  However, the State is not answerable under the Convention for that. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

Furthermore, in his submissions to the Court the applicant complains about the failure of the State authorities to execute the judgment in his favour. The Court finds that, having regard to the applicant’s failure to appeal to the domestic courts against the State Execution Service’s refusal to enforce the judgment of 29 November 2001, the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention. It follows that this complaint must be rejected pursuant to Article 35 § 4.

3. The applicant next complains about the failure of the State authorities to provide him with a pension of a particular amount. He does not invoke any Article of the Convention.

The Court points out that that the Convention does not guarantee, as such, any right to a pension of a particular amount (see Contal v. France , no. 67603/01, decision of 3 September 2002). It follows that this complaint 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 of the Convention.

4. The applicant complains about the State authorities’ failure to execute the judgment of 29 November 2001 of the Dnepropetrovsk Regional Court of Appeal given in his favour. He relies on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

However, the Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicant also complains about the failure of the State to provide him with the prescription drug Kalimine-60. He relies in this connection on Articles 2 and 8 of the Convention, which guarantee inter alia the right to life and the right to respect for private and family life, respectively.

The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted (see Vorobyeva v. Ukraine , no. 27517/02, decision of 17 December 2002). However, the Court finds that the applicant has not raised this complaint before any domestic court. The proceedings he did lodge concerned reimbursement of the expenses he had incurred in obtaining the drug elsewhere, proceedings which were successful, albeit unenforceable.  The applicant has not, therefore, as required by Article 35 § 1 of the Convention, exhausted the remedies available under domestic law. It follows that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

6. Finally, the applicant complains about alleged torture and a lack of effective remedies in consideration of his complaints. He relies on Articles 3 and 13 of the Convention, which provide:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“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.”

However, the Court finds nothing in the case-file which might disclose any appearance of a violation of the applicant’s rights under these provisions. These complaints are wholly unsubstantiated. The Court considers therefore that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the non-execution of the judgment of the Dnipropetrovsk Regional Court of Appeal of 29 November 2001;

Declares the remainder of the application inadmissible.

T.L. Early J.-P. Costa              Deputy Registrar President

[**] Krb. ( karbovantsi ) is an abbreviation for the transitional currency of Ukraine. UAH (hryvnias) have been in use since the 1996 money reform.