CASE OF YURIY NIKOLAYEVICH IVANOV v. UKRAINE
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Respondent State to take individual measures (Article 46 - Pilot judgment;Individual measures);Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
7. The applicant was born in 1957 and lives in Moscow. 8. In October 2000 the applicant retired from the Ukrainian Army. He was entitled to a lump-sum retirement payment and compensation for his uniform, but the payments were not made to him on his retirement. 9. In July 2001 the applicant instituted proceedings in the Cherkassy Regional Military Court against Military Unit A-1575, seeking recovery of the debt. On 22 August 2001 the court allowed his claim in full and ordered the military unit to pay the applicant 1,449.36 Ukrainian hryvnias (UAH) in compensation for his uniform, UAH 2,512.50 in retirement payment arrears, and UAH 51 by way of reimbursement for the court fees. On 22 September 2001 the court’s judgment became final and enforceable. 10. On an unspecified date the applicant received UAH 2,512.50. The remainder of the award remained unpaid. 11. The enforcement proceedings concerning the judgment of 22 August 2001 commenced on 24 January 2002. In the course of those proceedings the bailiffs informed the applicant that they had frozen the debtor’s bank accounts, though no funds had been found in those accounts. 12. In a letter of 12 November 2002 the Ministry of Defence informed the applicant that the legislative provisions entitling him to compensation for his uniform were suspended and that there were no budgetary allocations for such payments. 13. On 5 May 2003 the debtor military unit was disbanded and Military Unit A-0680 became its successor. 14. In a letter of 6 April 2004 the bailiffs informed the applicant that the latter military unit had no money to pay the applicant in compliance with the judgment of 22 August 2001. They also mentioned that the forced sale of assets belonging to military units was prohibited by the law. 15. The judgment of 22 August 2001 remains partially unenforced. 16. In 2002 the applicant lodged with the Leninskyy District Court of Kirovograd (“the Leninskyy Court”) a complaint against the bailiffs, alleging that the judgment of 22 August 2001 had not been enforced because of fault on their part. On 3 December 2002 the court found that the bailiffs had not taken the necessary measures to enforce the judgment in the applicant’s favour and ordered them to identify and freeze the bank accounts of the debtor military unit in order to seize the money available in those accounts. 17. According to the applicant, the bailiffs did not comply with the court’s ruling of 3 December 2002. On 20 May 2003 he lodged a claim with the same court against the bailiffs, seeking compensation for pecuniary and non-pecuniary damage. 18. On 29 July 2003 the applicant’s claim was partly allowed. The Leninskyy Court found that the judgment of 22 August 2001 remained unenforced through the fault of the bailiffs and awarded the applicant UAH 1,500.36 in compensation for pecuniary damage and UAH 1,000 for non-pecuniary damage. On 29 August 2003 the judgment of 29 July 2003 became final and enforceable. On 25 February 2004 an appeal by the applicant against the judgment of 29 July 2003 was dismissed as having been lodged out of time. 19. On 3 March 2004 the applicant submitted a written request to the Leninskyy Court to issue a writ of execution in respect of the judgment of 29 July 2003. The applicant did not receive the writ or a reply to his request. The judgment of 29 July 2003 remains unenforced. 20. Throughout the proceedings against the bailiffs, the applicant was assisted and represented by a lawyer. 21. According to the applicant’s lawyer, in order to substantiate the application in the present case he had tried to obtain some unspecified documents from the applicant’s case file kept by the Leninskyy Court. On 13 July 2004 he requested that court to send him all the documents from the case file, without specifying that he needed them for the applicant’s case before the Strasbourg Court. 22. In a letter of 29 July 2004 the Leninskyy Court informed the lawyer that he had failed to provide a form of authority and thus could not obtain the documents requested. 23. The applicant’s lawyer did not resubmit his request with an authority form. 24. Article 124 of the Constitution provides as follows: “... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” 25. Article 382 of the Code provides: “1. Wilful failure of an official to comply with a sentence, judgment, ruling or resolution of a court which has entered into force, or hindrance of its enforcement, shall be punishable by a fine [in the amount] of five hundred to one thousand times the statutory non-taxable monthly income, or by deprivation of liberty for a term of up to three years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years. 2. The same actions committed by an official occupying a responsible or especially responsible position, or by a person previously convicted of the crime envisaged by this Article, or [the same actions] causing substantial damage to the legally protected rights and freedoms of citizens, State or public interests or the interests of legal entities, shall be punishable by restraint of liberty for a term of up to five years, or by deprivation of liberty for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years. 3. Wilful failure of an official to comply with a judgment of the European Court of Human Rights shall be punishable by deprivation of liberty for a term of three to eight years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.” 26. The Act determines the procedure for forcible execution of decisions of courts and of other competent authorities and officials (“judgments”). 27. Under section 2 of the Act, the enforcement of judgments is entrusted to the State Bailiffs’ Service, which forms part of the Ministry of Justice. Other entities and officials may also carry out enforcement in accordance with the law. In particular, pursuant to section 9, the bodies of the State Treasury are responsible for the enforcement of judgments concerning recovery of money from the State or local budgets or entities financed from the State budget. 28. The Act confers a wide range of powers on bailiffs in enforcement proceedings. In particular, they are entitled to seek and obtain, from any person concerned, information and documents that are necessary for the enforcement of decisions, to enter and inspect premises belonging or occupied by debtors, to seize and sell debtors’ property, to freeze debtors’ bank accounts, and to impose fines on citizens and officials in cases envisaged by the law (sections 4-5 of the Act). The bailiffs’ orders concerning the enforcement of judgments are binding on all entities, organisations, officials and common citizens in the territory of Ukraine. Pursuant to sections 6 and 88 of the Act, the bailiffs are entitled to punish persons failing to comply with their orders by a fine amounting to ten to thirty times the statutory non-taxable monthly income. If the actions of the offenders fall within the ambit of the criminal law, the bailiffs are to request their prosecution. 29. Section 3 of the Act contains a list of documents on the basis of which bailiffs may proceed with forcible execution (“the enforcement documents”). It includes, inter alia, writs of execution issued by courts, rulings and resolutions of courts in civil, commercial, administrative and criminal cases, judicial orders, and judgments of the European Court of Human Rights. In order to initiate enforcement proceedings, the person in whose favour the judgment was delivered (“the creditor”) or a prosecutor who represented a citizen or the State in the court proceedings must submit to the bailiffs one of the documents specified in section 3 together with a request for its enforcement (section 18). The bailiffs have three days to determine whether the request was made in compliance with the law and, if so, to start the enforcement proceedings, which must normally be completed within six months (sections 24-25). Section 34 of the Act obliges the bailiffs to suspend the enforcement proceedings in specific situations. Such suspension is compulsory if, for instance, a commercial court has started bankruptcy proceedings against the debtor and imposed a ban on payments in respect of creditors’ claims, or if the debtor is an enterprise included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises. 30. Under section 37, enforcement proceedings are to be discontinued in cases where, for example, the judgment has actually been enforced in full, the time allowed for a particular type of debt collection has expired, or the enforcement document has been transferred to the debtor’s liquidator following official recognition of the debtor’s insolvency. The bailiffs must return the enforcement document to the creditor if, for instance, the debtor does not have property which could be seized with a view to enforcing the judgment and the measures adopted by the bailiffs in order to discover such property have proved to be unsuccessful. 31. Parties to enforcement proceedings or persons involved in them are entitled to challenge the bailiffs’ actions or inactivity before their superiors or courts and to claim damages (sections 7, 85 and 86). 32. By the transitional provisions of the Act, the application of sections 4 and 5 was suspended in respect of enterprises included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises. 33. Section 11 of this Act provides that damage caused by bailiffs in the course of execution of a judgment is to be compensated at the expense of the State in accordance with the procedure established by law. 34. Under section 5 of this Act, a military unit, as an entity taking part in economic activities, is legally responsible for its failure to fulfil its contractual obligations and for damage caused to the environment and to the rights and interests of natural and legal persons and the State. The money allocated under the relevant provisions of its budget, excluding the money allocated in respect of protected items of the budget, may be used to fulfil the unit’s obligations. If the amount of money available is insufficient, the Ministry of Defence becomes responsible for the unit’s debts. No property allocated to the unit may be used for settlement of its debts. 35. At its 114th session on 12 May 2004 the Committee of Ministers, having considered the measures needed to guarantee the long-term effectiveness of the control system instituted by the Convention, recommended, inter alia, that member States “review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court...” 36. In the Appendix to the Recommendation of 12 May 2004, the Committee of Ministers noted: “... The Court is confronted with an ever-increasing number of applications. This situation jeopardises the long-term effectiveness of the system and therefore calls for a strong reaction from contracting parties. It is precisely within this context that the availability of effective domestic remedies becomes particularly important. The improvement of available domestic remedies will most probably have quantitative and qualitative effects on the workload of the Court:  on the one hand, the volume of applications to be examined ought to be reduced: fewer applicants would feel compelled to bring the case before the Court if the examination of their complaints before the domestic authorities was sufficiently thorough;  on the other hand, the examination of applications by the Court will be facilitated if an examination of the merits of cases has been carried out beforehand by a domestic authority, thanks to the improvement of domestic remedies... 13. When a judgment which points to structural or general deficiencies in national law or practice (‘pilot case’) has been delivered and a large number of applications to the Court concerning the same problem (‘repetitive cases’) are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system. 14. The introduction of such a domestic remedy could also significantly reduce the Court’s workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution... 16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation... 18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases...” 37. At the same session of 12 May 2004 the Committee of Ministers adopted a resolution, by which it invited the Court to: “ ... I. as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments; II. to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court.” 38. On 6 March 2008 the Committee of Ministers considered, pursuant to Article 46 § 2 of the Convention, the measures adopted by the Government of Ukraine with a view to complying with the Court’s judgments concerning the issue of the prolonged non-enforcement of final domestic decisions. The Committee adopted an interim resolution (CM/ResDH(2008)1), the relevant provisions of which read as follows: “The Committee of Ministers... expresses particular concern that notwithstanding a number of legislative and other important initiatives, which have been repeatedly brought to the attention of the Committee of Ministers, little progress has been made so far in resolving the structural problem of non-execution of domestic judicial decisions; STRONGLY ENCOURAGES the Ukrainian authorities to enhance their political commitment in order to achieve tangible results and to make it a high political priority to abide by their obligations under the Convention and by the Court’s judgments, to ensure full and timely execution of the domestic courts’ decision; CALLS UPON the Ukrainian authorities to set up an effective national policy, coordinated at the highest governmental level, with a view to effectively implementing the package of measures announced and other measures which may be necessary to tackle the problem at issue; URGES the Ukrainian authorities to adopt as a matter of priority the draft laws that were announced before the Committee of Ministers, in particular the law On Amendments to Certain Legal Acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time); ENCOURAGES the authorities, pending the adoption of the draft laws announced, to consider the adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular: - to consider the adoption of measures similar to those taken in the education sector in other sectors which raise similar problems; - to take measures to ensure effective management and control over state entities and enterprises to avoid debts arising to employees; - to ensure in practice the effective liability of civil servants for non-enforcement; - to award compensation for delays in enforcement of domestic judicial decisions directly on the basis of the Convention’s provisions and the Court’s case-law as provided by the Law on enforcement of judgments and the application of the case-law of the European Court; INVITES the Ukrainian authorities to consider, in addition to the measures announced, appropriate solutions in the following areas: - to improve budgetary planning, particularly by ensuring compatibility between the budgetary laws and the state’s payment obligations; - to ensure the existence of specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations; and - to ensure the existence of an effective procedure and funds for the execution of domestic courts’ judgements delivered against the state...” 39. From 2 to 5 June 2009 the Committee of Ministers resumed consideration under Article 46 § 2 of the Convention of the group of the Court’s judgments against Ukraine concerning the failure to enforce, or delays in the enforcement of, domestic decisions. The following decision (CM/Del/Dec(2009)1059) was adopted by the Committee on that subject: “The Deputies, 1. recalled that, as acknowledged by the Committee of Ministers in its Interim Resolution CM/ResDH(2008)1, the non-enforcement of domestic judicial decisions constitutes a structural problem in Ukraine; 2. noted that there are still a number of cases in which domestic court decisions remain unenforced despite the judgments of the European Court; 3. noted with concern that, notwithstanding the efforts made by the Ukrainian authorities in adopting interim measures, the structural problem underlying the violations has not been solved; 4. observed that failure to adopt all necessary measures, including previously announced legislative measures, has resulted in a steady increase in the number of new applications lodged with the European Court concerning non-enforcement of domestic judicial decisions; 5. noted with concern in this context that priority has not been given to setting up a domestic remedy in case of non-enforcement or delayed enforcement of domestic judicial decisions, despite the Committee’s repeated calls to this effect; 6. called upon the Ukrainian authorities once again to take rapidly the necessary action to ensure Ukraine’s compliance with its obligations under the Convention, and in particular to reconsider the various proposal for reforms made during the examination of these cases (see, in particular, CM/Inf/DH(2007)30 revised and CM/Inf/DH(2007)33); 7. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), possibly in light of a draft interim resolution taking stock of the general and individual measures adopted by then and other outstanding issues if any.”