SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights (Second Section), sitting on 6 September 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr I. Cabral Barreto
 Mr V. Butkevych
 Mrs A. Mularoni
 Mrs E. Fura-Sandström
 Ms D. Jočienė, 
 Mr D. Popović, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 25 March 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Leonid Ivanovich Balyuk, is a Ukrainian national who was born in 1957 and lives in the town of Mukachevo, Zakarpattya Region, Ukraine.

A.  The circumstances of the case

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

Enforcement of the courts’ judgments in the applicant’s favour

First set of proceedings

On 11 August 1997, 16 May 2000 and 27 July 2000 the Mukachevo Town Court found for the applicant and awarded him a total of UAH 1,270.94 against a certain Mr P. These judgments were not enforced, allegedly due to Mr P.’s lack of funds.

On 22 August 2000 the Zakarpattya Regional Court upheld the judgment of 16 May 2000 by which the court had awarded the applicant compensation for material damage caused by the non-enforcement of the judgment of 11 August 1997, but rejected the applicant’s claim for compensation for moral damage.

In January 2001 the applicant instituted proceedings in the Mukachevo Town Court against the Bailiffs’ Service of Ukraine for an allegedly improper enforcement of the above judgments. On 30 January 2001 the court found against the applicant. On 1 November 2001 the Zakarpattya Appellate Court upheld this judgment. The applicant states that he did not appeal in cassation against these judgments because the first instance court failed to provide him with copies of documents from the case file.

The applicant instituted another set of proceedings against the Bailiffs’ Service of Ukraine. On 15 March 2002 the court rejected the applicant’s complaint as time-barred. The applicant did not appeal against this decision.

Second set of proceedings

In April 2001 the applicant instituted proceedings in the Mukachevo Town Court against a certain Mr S., claiming payment of a debt owed to him.

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

On 13 June 2001 the court found for the applicant and awarded him UAH 7,027 (approximately EUR 1,533.90 at the material time) against Mr S. This judgment was not enforced 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, seeking to annul the sales agreement. On 11 February 2002 the court stated that the agreement was valid. In particular, the court stated 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.

Proceedings related to the applicant’s complaints to different State authorities

In 1997-2004 the applicant complained about the non-enforcement of the judgments in his favour to different State authorities.

Complaint against the Post Office

In 2002 the applicant instituted proceedings in the Mukachevo Town Court against the Post Office, claiming compensation for moral damage because some of his letters to the prosecutor were allegedly lost. On 26 April 2002 the court returned the applicant’s complaint because it did not comply with the procedural requirements prescribed by law. The applicant neither appealed against this decision, nor lodged his complaint anew.

Complaint against the prosecutor

In November 2002 the applicant instituted proceedings in the Uzhgorod City Court against the prosecutor of the Zakarpattya region, claiming compensation for moral damage because the prosecutor had allegedly refused to see him.

On 2 December 2002 the court returned the applicant’s complaint because it did not comply with the procedural requirements prescribed by law. In particular, the applicant had not paid the court fee, had not substantiated the claimed compensation for moral damage, etc.

On 15 January 2003 the Zakarpattya Appellate Court quashed this decision and remitted the case for a fresh consideration.

On 27 February 2003 the court again returned the applicant’s complaint because it did not comply with the procedural requirements prescribed by law.

On 6 May 2003 and 30 April 2004, respectively, the Zakarpattya Appellate Court and the Supreme Court of Ukraine upheld this decision.

Complaint against the President of Ukraine

In April 2003 the applicant instituted proceedings in the Pecherskiy District Court against the President because the latter had failed to forward the applicant’s complaint to the Constitutional Court of Ukraine.

On 21 April 2003 the court rejected the applicant’s complaint. All of his numerous appeals against this decision were rejected for non-compliance with the procedural requirements prescribed by law.

Complaint against the Head of the Council of Judges of Ukraine

The applicant instituted proceedings in the Pecherskiy District Court against the Head of the Council of Judges because the latter had not answered the applicant’s letter. On 26 February 2004 the court returned the applicant’s complaint on the ground that courts were not entitled to consider such complaints. The applicant neither appealed against this decision, nor lodged his complaint anew.

Administrative proceedings against the applicant

The applicant represents his mother, Mrs G., before the Court (application no. 13663/04). By letter of 20 April 2004, the Registry of the Court requested the applicant and Mrs G. to provide the explanation of the Bailiffs’ Service for the non-enforcement of the judgments in their favour.

On 7 December 2004 the applicant went to the Mukachevo Town Court and requested it to provide him, in accordance with his request of 15 November 2004, with copies of the documents he considered necessary to substantiate his and his mother’s applications before the Court. The applicant told the domestic court that these documents had been requested from him and his mother by the European Court of Human Rights. Judge G. allegedly refused to provide him with the copies and allegedly shouted at the applicant, using abusive language. The applicant did not institute any proceedings against Judge G. He allegedly complained about it to the president of the court, but to no avail.

On 7 February 2005 the Mukachevo Town Court, under the administrative procedure in the applicant’s absence, imposed on him a fine of UAH 51 (approximately EUR 8) for contempt of court, stating that on 7 December 2004 the applicant had entered the office of Judge G., shouted at him and then left, slamming the door.

B.  Relevant domestic law

Code of Civil Procedure, 1963

Article 156 of the Code provides that a decision to secure a claim shall be enforced immediately in accordance with the procedure for the enforcement of judgments.

COMPLAINTS

1.  The applicant complains under Article 6 of the Convention of unfair hearings, and of the outcome and the length of the proceedings in his civil cases. In particular, the applicant complains that the courts failed to award him compensation for moral damage caused by the lengthy non-enforcement by Mr P. of the judgment of 11 August 1997, and that they failed to consider his complaints about different State authorities. The applicant further complains that the courts prevented him from appealing against judgments and decisions in his cases.

2.  The applicant complains under Article 6 of the Convention that he was fined under the administrative procedure in his absence and that it was impossible to appeal against that decision.

3.  The applicant complains under Article 1 of Protocol No. 1 of the non-enforcement of the judgments in his favour.

4.  The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 of the failure of the courts to enforce the decision to secure his claim.

5.  The applicant complains under Article 3 of the Convention that Judge G. treated him in a degrading manner.

6.  The applicant complains under Article 8 of the Convention that the Post Office interfered with his correspondence and that his telephone was tapped.

7.  The applicant invokes Articles 14 and 17 of the Convention, without any further specification.

8.  The applicant finally complains under Article 34 of the Convention that the courts refused to provide him with copies of the documents necessary for his application to the Court. He further complains that he is persecuted by the State authorities because of this application.

THE LAW

ARTICLE 6 OF THE CONVENTION

civil proceedings

1.  The applicant complains about unfair hearings, and about the outcome and length of the proceedings in his cases. He also complains that the courts prevented him from appealing against judgments and decisions in his cases. The applicant invokes Article 6 § 1 of the Convention which provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing...”

In so far as the applicant complains that the courts failed to award him compensation for moral damage caused by the lengthy non-enforcement by Mr P. of the judgment of 11 August 1997, the Court notes that the final court decision in that case was given by the Zakarpattya Regional Court on 22 August 2000, that is more than six months before the date on which the application was submitted to the Court. It follows that this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for having been submitted out of time.

In so far as the applicant complains of unfair hearings and the outcome of the proceedings in his cases, the Court notes that the applicant failed to appeal against the judgments and decisions under the appellate or cassation procedure. Therefore, this part of the application should be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies.

As for the applicant’s complaint that the courts prevented him from lodging such appeals, the Court notes that it is primarily for the national authorities, notably the courts of appeal and of first instance, to resolve problems of interpretation of domestic legislation. The role of the Court is limited to verifying whether the effects of such interpretation are compatible with the Convention. This applies in particular to the interpretation by courts of rules of a procedural nature governing the filing of documents or the lodging of complaints. Although time-limits and procedural rules must be adhered to as part of the concept of a fair procedure, in principle it is for the national courts to police the conduct of their own proceedings (see, mutatis mutandis, Tejedor García v. Spain, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII).

In the instant case the applicant failed to raise his complaints before the national courts in accordance with the procedural requirements prescribed by law, due to his own interpretation of these requirements. Moreover, in a number of proceedings, the applicant had the possibility to file complaints anew, or to appeal or to request the courts to prolong the time-limits for lodging such complaints or appeals. However, he took none of these steps.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

In so far as the applicant complains of the length of the proceedings in his cases, the Court notes that it varied from several months to one year and five months. Such a duration does not exceed the "reasonable time" requirement of Article 6 § 1 of the Convention. In particular, there is no discernible period of inactivity which can be attributed to the domestic courts. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Administrative proceedings

2.  The applicant complains under Article 6, cited above, that he was fined under the administrative procedure in his absence. He also complains about the impossibility to appeal against this decision.

The Court notes that sanctions for contempt of court derive from the inherent power of courts to ensure the proper and orderly conduct of their own proceedings. Such sanctions may usually be deemed to be of a disciplinary nature. However, a serious penalty, like imprisonment or a heavy fine, for contempt of court could transform the proceedings into the determination of a criminal charge, which might attract the guarantees of Article 6 of the Convention (cf. Ravnsborg v. Sweden, judgment of 23 March 1994, Series A no. 283-B, p. 30, § 34, Putz v. Austria, judgment of 22 February 1996, Reports 1996-I, p. 324, § 33).

In the present case, however, the Court notes that the fine imposed on the applicant was relatively small (the equivalent of EUR 8) and was not convertible into imprisonment on default. It concludes, therefore, that this sanction did not amount to a criminal sanction. Article 6 is therefore not applicable to the contempt proceedings against the applicant.

It follows that this part of the application is incompatible ratione materiae with Article 6 of the Convention.

ARTICLE 1 OF PROTOCOL NO. 1

3.  The applicant complains about the non-enforcement of the judgments in his favour. He invokes Article 1 of Protocol No. 1, which provides in so far as relevant as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions...”

The Court notes that the non-enforcement in the present case is due to the lack of funds of the defendants who are private persons. However, a State cannot be held responsible for such lack of funds and its responsibility extends no further than the involvement of State bodies in the enforcement proceedings (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002). Though the applicant alleges that the Bailiffs’ Service were at fault in failing to ensure the enforcement of the judgments in his favour, the Court observes that the applicant did not appeal against a number of the decisions concerning that Service. In the light of the Court’s conclusions in connection with the applicant’s complaints under Article 6 of the Convention, the Court finds that this part of the application should be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

4.  The applicant further complains under Article 6 of the Convention and Article 1 of Protocol No. 1, cited above, of the failure of the courts to enforce their decisions to secure his claim.

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 the Court, to give notice of this part of the application to the respondent Government.

ARTICLES 3, 8, 14, 17 AND 34 OF THE CONVENTION

5. In so far as the applicant invokes Articles 3, 8, 14, 17 and 34 of the Convention, the Court notes that, to the extent that the applicant raised these issues before the domestic courts, his allegations are unsubstantiated and do not lay a basis for an arguable claim of a breach any of these provisions. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with 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 enforcement of the court decisions to secure his claim against Mr S.;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

BALYUK v. UKRAINE DECISION


BALYUK v. UKRAINE DECISION