CASE OF VOYTENKO v. UKRAINE
Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
4. The applicant, Mr Anatoliy Pavlovych Voytenko, is a Ukrainian national who was born in 1961 and resides in the village of Nova Vodolaga, in the Kharkiv Region, Ukraine. 5. In September 1999, the applicant retired from the army. Upon retirement, the applicant was entitled to compensation for his uniform and to reimbursement of his travel expenses. As this compensation remained unpaid for three months, the applicant instituted proceedings in the Donetsk Garrison Military Court against the Donetsk Regional Military Registration Department (Донецкий Областной Военный Комиссариат), seeking recovery of the debt. 6. On 12 January 2000, the court found for the applicant (Решение Военного суда Донецкого гарнизона) and awarded him UAH 2,576.72 for the uniform and UAH 128.77 for travel expenses. The court decision was not appealed and therefore came into force on 22 January 2000. The execution writs were sent to the Voroshylovsky District Bailiffs’ Service of Donetsk (Отдел Государственной исполнительной службы Ворошиловского районного управления юстиции Донецкой области) and the enforcement proceedings started on 16 March 2000. 7. The debtor was given time to execute the judgment voluntarily, until 23 March 2000. After the debtor had failed to execute the judgment, the Bailiffs’ Service sent the execution writs and payment orders to the Donetsk Regional Treasury Department to withdraw the amount of the award from the debtor’s account, which revealed a lack of funds for such payments. 8. On 10 April 2000, the payment order and execution writ were returned to the Bailiffs’ Service without execution due to the debtor’s lack of funds. 9. On 17 May 2000, the enforcement proceedings in the applicant’s favour were joined to other enforcement proceedings against the debtor. 10. On 24 October 2000, the debtor transferred to the Bailiffs’ Service the amount of UAH 128.77 (the reimbursement of the travel expenses) to be paid to the applicant. However, this sum was only transferred to the applicant on 20 July 2001 (4 October 2001 according to the applicant). The delay, according to the Government, was caused by a lack of information about the applicant’s banking details. 11. On 7 November 2000 and 20 July 2001, the execution writ and the payment order for the remaining amount (the compensation for the uniform) were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds as before – a lack of funds on the designated account. 12. On 9 September 2001 the Bailiffs’ Service checked and attached the debtor’s accounts. The Bailiffs also checked and found that the debtor had no vehicles or real estate in its possession. 13. On 22 February and 6 August 2002 the execution writ for the remaining amount and the payment order were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds. The Treasury Department also noted that the payment order had expired on 6 September 2002. 14. In response to the applicant’s inquiry, he was informed by the Bailiffs’ Service in August 2002 that the debtor’s accounts had been frozen and that the execution of his judgment would take place as soon as State budgetary money could be transferred to it. 15. On 25 November 2002, joint enforcement proceedings against the debtor, including the applicant’s judgment, were initiated by the Bailiffs’ Service for a total amount of UAH 32,680.80. 16. On 16 December 2002, the Bailiffs’ Service attached the debtor’s account in the “Aval” Bank. 17. On 5 May 2003, the Bailiffs’ Service also ordered an attachment of the debtor’s funds which had accumulated in 26 accounts. 18. On 10 January 2004, the judgment given in the applicant’s favour was enforced in full. 19. On 12 January 2004, the amount awarded was transferred to the applicant’s bank account. 20. Article 124 of the Constitution provided 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.” 21. Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation. 22. Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. 23. According to Article 5 of the Law, accounts other than the one designated for a particular payment, as well as the property of the Armed Forces, cannot be used to enforce a court decision. 24. Under clause 3.6 of the regulations, the forced recovery of funds must be executed from the same account as that of ordinary payments. 25. The law suspended certain provisions of the Law of Ukraine “on the social welfare and legal protection of military personnel and their families”, in particular with regard to compensation for clothing and travel expenses.