SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43496/02 
by Tamara Andreyevna ZBARANSKAYA 
against Ukraine

The European Court of Human Rights (Second Section), sitting on 11 October 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 22 November 2002,

Having regard to the decision to discontinue application of Article 29 § 3 of the Convention,

Having regard to the observations on the admissibility of the above application submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Tamara Andreyevna Zbaranskaya, is a Ukrainian national, who was born in 1934 and currently resides in the town of Dniprodzerzhynsk, Ukraine.

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

First set of proceedings

On 16 October 2000 the applicant lodged with the Zavodskyi Local Court a civil claim against Ukraine and the President of Ukraine seeking recovery of her indexed deposits in the State Savings Bank of Ukraine and compensation for non-pecuniary damage. On 27 November 2000 the court left the applicant’s claim without consideration due to her failure to comply with the procedural formalities. The applicant failed to appeal in cassation against this decision.

Second set of proceedings

In November 2001 the applicant lodged with the Zavodskyi Local Court a new civil claim against Ukraine, the President of Ukraine, the State Savings Bank of Ukraine, and the State Regional Treasury Office seeking recovery of her indexed deposits in the Dnipropetrovskyi Regional Department of the State Savings Bank of Ukraine (the “DSB”) – a regional department of the State-owned bank – as well as compensation for non-pecuniary damage. The applicant was granted exemption from court fees. On 27 March 2002 the court found in part for the applicant and ordered the DSB to pay her UAH 4,337.031 in reimbursement of the indexed bank deposits.

On 6 June 2002 the Zavodskyi Local Court rejected the applicant’s request for leave to appeal against the judgment of 27 March 2002 due to her failure to comply with the procedural formalities. The applicant did not appeal against the procedural decision of 6 June 2002.

On 28 June 2002 the Zavodskyi Local Court rejected the applicant’s request for leave to appeal in cassation against the judgment of 27 March 2002 as she had failed to challenge this judgment under the ordinary appellate procedure. The applicant did not appeal against the procedural decision of 28 June 2002.

The Government submitted, although without documentary support, that on 29 July 2002 the Zavodskyi Local Court had rejected the appeal of the State Savings Bank of Ukraine against the judgment of 27 March 2002 for failure to lodge it within the statutory time-limit. The applicant, in her turn, argued, without any documentary support either, that the bank lodged its appeal against the above judgment on 18 March 2003.

The Government further maintained that on an unspecified date the Appellate Court of the Dnipropetrovsk Region had allowed the appeal of the bank against the procedural decision of 29 July 2002 and had granted it an extension of the time-limit for lodging its appeal against the judgment of 27 March 2002.

On 24 April 2003 the Appellate Court of the Dnipropetrovsk Region quashed the judgment of 27 March 2002 in part concerning the award in favour of the applicant and found against her. The applicant argued that she had not been informed about the hearing of 24 April 2003 and had not been present there.

The applicant failed to appeal in cassation against the decision of the appellate court of 24 April 2003, allegedly due to her lack of funds.

Enforcement proceedings in respect of the judgment of 27 March 2002

On 28 May 2002 the Zavodskyi Local Bailiffs’ Service instituted enforcement proceedings in respect of the judgment of the Zavodskyi Local Court of 27 March 2002. On 12 June 2002 the Bailiffs’ Service discontinued enforcement proceedings in the applicant’s case on the grounds that the DSB was not a separate legal entity and that it was the Cabinet of Ministers of Ukraine which was competent to establish the order of reimbursement of the indexed deposits under the Law of Ukraine on the State Budget. The applicant did not appeal against this decision. The judgment of 27 March 2002 was not enforced.

COMPLAINTS

The applicant complains about the non-enforcement of the judgment of the Zavodskyi Local Court of 27 March 2002. She invokes Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

The applicant further complains about the unfairness and length of the proceedings before the domestic courts. She invokes Article 6 § 1 of the Convention.

The applicant complains under Articles 1 and 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that her right to the peaceful enjoyment of her possessions was violated as a result of the failure of the courts and other domestic authorities to reimburse her indexed deposits.

The applicant also in substance complains under Article 13 of the Convention that she did not have an effective remedy in respect of her complaint about the inability to recover her indexed deposits.

THE LAW

A.  Objection of the Government as to the applicant’s victim status

The Government maintained that the applicant could not 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 27 March 2002 was not a final decision in the sense of Article 35 of the Convention.

The applicant confirmed that the judgment of 27 March 2002 had been quashed, but maintained her complaint about the State authorities’ failure to enforce the above judgment.

The Court observes that the judgment of 27 March 2002 became final and the Bailiffs commenced the enforcement proceedings in respect of this judgment on 28 May 2002. The Court further observes that, although the enforcement proceedings were discontinued on 12 June 2002, the above judgment had remained enforceable until it was quashed by the Appellate Court of the Dnipropetrovsk Region on 24 April 2003.

The Court concludes that the applicant may still claim to be a “victim”, within the meaning of Article 34 of the Convention, in respect of her complaint about the failure to enforce the judgment of 27 March 2002 until it was quashed by the appellate court. Accordingly, the Court dismisses the Government’ objection.

B.  Admissibility of the applicant’s complaints

1.  The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the judgment of the Zavodskyi Local Court of 27 March 2002.

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.”

The Court notes that the above complaint concerns two different periods of time, in particular, the period when the judgment at issue was enforceable and the period after it was quashed by the appellate court. Therefore, the complaint should be examined separately in respect of each period.

Non-enforcement of the judgment in the applicant’s favour from 28 May 2002 until 24 April 2003

In their observations, the respondent Government submitted that the applicant did not challenge the decision of the Zavodskyi Local Bailiffs’ Service of 12 June 2002 to discontinue the enforcement proceedings before the domestic courts and, therefore, had not exhausted, as required by Article 35 § 1 of the Convention, the remedies available to her under Ukrainian law. The Government maintained that such remedies were effective both in theory and in practice.

The applicant did not comment on this.

The Court observes that the enforcement proceedings in respect of the judgment of 27 March 2002 commenced on 28 May 2002 and this judgment had been enforceable until it was quashed by the Appellate Court of the Dnipropetrovsk Region on 24 April 2003.

Therefore, the period, during which the judgment remained unenforced, lasted almost eleven months. The Court notes that, given its findings in previous, similar cases against Ukraine (see, for instance, Kornilov and Others v. Ukraine (dec.), no. 36575/02, 7 October 2003), this period is not so excessive as to raise an arguable claim under Article 6 § 1 of the Convention or Article 1 of Protocol No. 1.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.

Non-enforcement of the judgment in the applicant’s favour after 24 April 2003

The Government argued that the applicant had not appealed in cassation against the decision of the Appellate Court of the Dnipropetrovsk Region of 24 April 2003 to quash the judgment in the applicant’s favour and, therefore, had not exhausted, as required by Article 35 § 1 of the Convention, the remedies available to her under Ukrainian law. The Government maintained that such remedies were effective both in theory and in practice.

The applicant argued that she had failed to appeal in cassation against the decision of the appellate court of 24 April 2003, due to lack of funds.

The Court observes that the decision of the Appellate Court of the Dnipropetrovsk Region to grant a State institution the extension for lodging an appeal allegedly ten months after the judgment had become final may give rise to problems of legal certainty. The Court, however, notes that the applicant failed to appeal in cassation against the decision of the Appellate Court of the Dnipropetrovsk Region of 24 April 2003, even though she had been exempted from court fees.

In that respect, the applicant cannot be regarded as having exhausted all the domestic remedies available to her under Ukrainian law.

Moreover, the Court considers that, given the fact that the judgment of 27 March 2002 had been quashed by the decision of the appellate court, there was no binding judgment to be enforced after 24 April 2003.

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

2.  The applicant further complains that the proceedings before the domestic courts were unfair and unreasonably long within the meaning of Article 6 of the Convention.

In so far as the applicant complains about the unfairness of the proceedings, the Court observes that the applicant failed to appeal in cassation against the decision of the Zavodskyi Local Court of 27 November 2000 in the course of the first set of the proceedings. The applicant also failed to appeal against the procedural decisions of the Zavodskyi Local Court of 6 and 28 June 2002 and the decision of the Appellate Court of the Dnipropetrovsk Region of 24 April 2003 in the course of the second set of the proceedings. Accordingly, the applicant has not exhausted, as required by Article 35 § 1 of the Convention, the remedies available to her under Ukrainian law. It follows that this part of the complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

In so far as the applicant complains about the length of the proceedings before the domestic courts, the Court considers that this part of the complaint is manifestly ill-founded, as the first set of the proceedings did not last more than a month and a half, while the second set of the proceedings lasted one year and five months. These periods are not so excessive as to lay a basis for an arguable claim under Article 6 § 1 of the Convention.

3.  The applicant also complains under Articles 1 and 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that her right to the peaceful enjoyment of her possessions was violated as a result of the failure of the courts and other domestic authorities to reimburse her indexed deposits. The applicant also in substance complains under Article 13 of the Convention that she did not have an effective remedy in respect of the above complaint.

The Court recalls that it has previously held that the recovery of indexed deposits is not a matter protected by the Protocol and, accordingly, was outside the Court’s competence ratione materiae (see Gayduk and Others v. Ukraine (dec.), 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.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

1   Around EUR 712.


ZBARANSKAYA v. UKRAINE DECISION


ZBARANSKAYA v. UKRAINE DECISION