AS TO THE ADMISSIBILITY OF
Application no. 18512/02
by Aleksandr Nikolayevich DENISOV
The European Court of Human Rights (Second Section), sitting on 1 February 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs A. Mularoni,
Ms D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 22 March 2002,
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 applicant, Mr Aleksandr Nikolayevich Denisov, is a Ukrainian national, who was born in 1973 and lives in Dimitrov, the Donetsk Region.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 February 2001 the Dimitrov City Court ordered the Stakhanov State-owned mine to make an extraordinary grant to the applicant in the amount of UAH 19,745.421 by way of compensation for an occupational disability.
On 1 March 2001 the Dimitrov City Baillifs initiated the enforcement proceedings in the case.
On 11 March 2002 the Dimitrov City Department of Justice (відділ Державної виконавчої служби Димитровського міського управління юстиції) informed the applicant that it had received a writ of execution (виконавчий лист), dated 6 February 2001, on 2 March 2001 and that the total compensation received by the applicant to date had been UAH 8,5002.
On 8 May 2002 the Dimitrov City Department of Justice informed the applicant that, in accordance with section 44 of the Law of Ukraine “on execution proceedings” (Про виконавче провадження), extraordinary grants should be paid as a matter of priority, applying the coefficients stipulated in the said Law. It further stated that the total compensation received by the applicant to date had been UAH 9,203.423.
The judgment was fully enforced in October 2002 and the enforcement proceedings were discontinued.
On 17 June 2003 the Dimitrov City Bailiffs sent the applicant the schedule of payments which had been made. It mentioned that, as from 6 February 2001, the applicant had been paid the whole amount of UAH 19,745.42 in 18 instalments (at least once a month).
On 19 July 2003 the applicant informed the Court that the full amount awarded by the judgment of 6 February 2001 had indeed been paid to him.
On 6 April 2004 the applicant, in response to a strike-out warning letter from the Registry requesting him to submit comments on the Government's observations, informed the Court, without giving any details that he wished to pursue his application.
Under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant complains about the non-execution of the judgment of 6 February 2001. He maintained under Article 1 of Protocol No. 1 that the State had infringed his right to the peaceful enjoyment of his possessions.
In his later correspondence, the applicant informed the Court that the judgment in his favour had been fully enforced, but he nevertheless requested the Court to continue the examination of his complaint about its delayed execution (allegedly 2 years) and to award him non-pecuniary compensation for that delay.
On 23 June 2003 the applicant lodged an additional complaint under Article 6 § 1 of the Convention about the non-enforcement of a judgment of 5 July 2002 given in his favour that awarded him compensation for a car that he was supposed to receive. Subsequently, he never mentioned whether that judgment had been enforced.
I. THE SCOPE OF THE CASE
The Court recalls that the institutions set up under the Convention have jurisdiction to review, in the light of the entirety of the Convention's requirements, the circumstances complained of by an applicant. In the performance of their task, the Convention institutions are, notably, free to attribute to the facts of the case, as found to be established on the evidence before them, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner. Furthermore, they have to take into account not only the original application but also the additional documents intended to complete the latter by eliminating initial omissions or obscurities (see, Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, pp. 40-41, § 98, as compared with p. 34, § 79, and pp. 39-40, §§ 96-97).
The Court notes that in the instant case the applicant in July 2003 introduced a new complaint after the communication of the case to the respondent Government in September 2002, based on an alleged infringement of Article 6 § 1 of the Convention. In the Court's view, that complaint is not an elaboration of his original application to the Court lodged in March 2002 and on which the parties have commented. The Court, having regard to the applicant's failure to elaborate on this complaint and to provide relevant documents, considers that it is not appropriate now to take this matter up separately (cf. the judgment in Nuray Şen v. Turkey of 30 March 2004, no. 25354/94, § 200; Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004).
II. AS TO THE SUBSTANCE OF THE CASE
The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No.1 about the non-enforcement of the judgment of the Dimitrov City Court of 6 February 2001 that awarded him an extraordinary payment in compensation for an occupational disability. He further complained of improper enforcement proceedings and that the ensuing delay caused him inconvenience.
Article 6 § 1 of the Convention provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1 to the Convention 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 (...).”
In their observations, the respondent Government maintained that the applicant could no longer claim to be a victim of the violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 since the judgment of 5 July 2001 had been fully executed. The applicant confirmed that the judgment had been enforced, but maintained his complaint about the undue length of the enforcement period.
Moreover, 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 are effective both in theory and in practice. The applicant did not contest this.
The Court considers, however, that it is not necessary to determine these preliminary issues as it anyway finds the case to be manifestly ill-founded for the reasons set out below.
As to the length of the enforcement proceedings, the Court notes that they lasted 1 year and 8 months. However, in previous, similar cases against Ukraine, the Court has held that delays of up to two years and seven months (see Krapyvnitsky v. Ukraine (dec.), no. 60858/00, 17 September 2002), were not so excessive as to raise an arguable claim under Article 6 § 1 of the Convention.
Taking into account the fact that efforts were made to enforce the judgment and that the payment was of an extraordinary nature (i.e. not being salary arrears or the like), the Court finds that that period was not incompatible with the “reasonable time” criterion of Article 6 § 1 of the Convention (see Chernitsyn v. Russia (dec.), no. 5964/02, 8 July 2004). In particular, it finds no unreasonable delay or substantial inactivity that could be attributed to the domestic authorities, the State Bailiffs' Service or the State-owned mining company. Furthermore, the applicant has not shown that that there were special, urgent circumstances in the case that could lead the Court to the conclusion that the payment by instalments and the overall period involved were unreasonable (see Shmalko v. Ukraine, no. 60750/00, judgment of 20 July 2004, § 44).
The Court concludes, therefore, that the case does not disclose any appearance of a violation of Article 6 of the Convention or Article 1 of Protocol No. 1. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention.
Declares the application inadmissible.
S. Dollé J.-P. Costa
DENISOV v. UKRAINE DECISION
DENISOV v. UKRAINE DECISION