SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27184/03 
by Vladimir Vladimirovich GANENKO 
against Ukraine

The European Court of Human Rights (Second Section), sitting on 11 January 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 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 29 July 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

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, Mr Vladimir Vladimirovich Ganenko, is a Ukrainian national who was born in 1941 and lives in the city of Sebastopol, Ukraine. He was represented before the Court by Mr R.Y. Martynovskiy, a lawyer practising in Sebastopol. The respondent Government were represented by Mrs Z. Bortnovska, their Agent.

A.  The circumstances of the case

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

The applicant is physically disabled and cannot move about without the assistance of another person.

On 26 July 2001 the applicant instituted proceedings in the Gagarinskiy District Court of Sebastopol against the Labour and Social Policy Department on account of its failure to provide him with a new vehicle for disabled persons in place of the old one that he had been using since 1989. The applicant also requested the court to order the defendant to provide him with a new vehicle within six months.

On 27 December 2001 the court allowed the applicant's claim in part, ordering the Department to provide the applicant with a vehicle. At the same time the court refused to fix any time-limit for the defendant to comply with this judgment. This judgment was not appealed against by either party and became final on 28 January 2002.

On 9 April 2002 the enforcement proceedings were opened.

These proceedings were terminated several times. It appears that the judgment of 27 December 2001 could not be enforced because of the lack of funds in the State budget.

On 18 July 2003 the Bailiff Service took proceedings in the Gagarinskiy District Court of Sebastopol, requesting the suspension of the enforcement of the judgment of 27 December 2001 and a stay of the enforcement proceedings.

On 14 August 2003 the Gagarinskiy District Court of Sebastopol rejected the Bailiff Service's action.

On 17 March 2004 the applicant received the vehicle in question and the enforcement proceedings were terminated.

B.  Relevant domestic law

Decree of the Cabinet of Ministers of Ukraine of 8 September 1997 on the Procedure for Providing Disabled Persons with Vehicles

Paragraph 4 stipulates that a disabled person is provided with a vehicle free of charge or at thirty percent of its price for a period of ten years without having the right to sell it, donate it or transfer it to a third person. After the expiry of the said period, the disabled person can use the vehicle until he receives a new one.

COMPLAINTS

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the final judgment of 27 December 2001.

THE LAW

1.  The applicant complained that, due to the non-execution of the judgment given in his favour, his right to a court was violated. He relied on Article 6 § 1 of the Convention, which provides as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

The Government maintained that the judgment at issue was enforced and the applicant could therefore no longer claim to be a victim of the alleged violation. They further maintained that the time taken to enforce the judgment was justified and reasonable, given the large number of disabled persons entitled to receive this type of social benefit.

The applicant maintained that he still could claim to be a victim since enforcement of the judgment had taken an unreasonably long time.

The Court reiterates that effective access to court includes the right to have a court decision enforced without undue delay (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 66, ECHR 1999-V). However, a stay in the execution of a judicial decision, until such time as is strictly necessary to enable a satisfactory solution to be found to public-order problems, may be justified in exceptional circumstances (ibid. § 69).

In the instant case, there was a delay of over two years and one month in the enforcement of the judgment. It observes that the domestic court which ordered the State authority to provide the applicant with a vehicle rejected the applicant's request to fix a time-limit for its enforcement. The applicant did not challenge this refusal using the appellate and cassation procedure. It further notes that the enforcement of a judgment incorporating a ruling of a non-pecuniary nature may take more time than is the case for payment of money awarded under a court judgment. Finally, it observes that the applicant did not submit any arguments either before the domestic court or in the Convention proceedings that the enforcement of the judgment required particular diligence. It notes in this connection that the applicant has not disputed that he was at all times able to use the vehicle originally provided to him while awaiting the delivery of a new one.

Having regard to these considerations, the Court finds that in the circumstances of the present case the length of the enforcement proceedings cannot be considered excessive. There is, accordingly, no appearance of a breach of Article 6 § 1 of the Convention. 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 further complained that the non-execution of the judgment of 27 December 2001 violated Article 1 of Protocol No. 1, which reads 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.”

The Government maintained that the judgment in the applicant's favour did not constitute a “possession” within the meaning of Article 1 of Protocol No. 1. They submitted that the vehicle was given to the applicant solely for his personal use and could not be considered his property either under domestic law or Article 1 of Protocol No. 1. In any event, a fair balance was struck between the interests of the applicant and those of other individuals who were entitled to the same benefit.

The applicant maintained that the judgment of 27 December 2001 gave him a right to receive and use a vehicle for 10 years, which constituted a “possession” within the meaning of Article 1 of Protocol No. 1.

The Court considers that in the circumstances of the instant case it does not have to decide on the question whether the judgment of 27 December 2001, seen in terms of a recognition of the applicant's right to a social benefit of a particular nature (see Koua Poirrez v. France, no. 40892/98, § 37, ECHR 2003-X) constituted a “possession” within the meaning of Article 1 of Protocol No. 1. For the Court, even assuming the applicability of Article 1 of Protocol No. 1 on the facts of the case, the reasons which led it to reject the applicant's complaint under Article 6 are dispositive of his grievance under the former provision.

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

3.  Having regard to the above conclusions, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

GANENKO v. UKRAINE DECISION


GANENKO v. UKRAINE DECISION