CASE OF PONOMARYOV v. UKRAINE
Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - award
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
4. The applicant, Mr Viktor Vasylyovych Ponomaryov, is a Ukrainian national who was born in 1953 and lives in the village of Rogan, Kharkiv region, Ukraine. 5. On 18 February 1991 the applicant was dismissed from the State-owned farm KhTZ. 6. After numerous unsuccessful attempts to receive salary and other payments arrears due to him from the farm, in February 1999 the applicant lodged a civil claim against the farm seeking the above payments and compensation for the delay in their payment. 7. In January 2001 the defendant was transformed into the Sad Joint-Stock Company (hereafter “the Company”) in which 25% of shares belonged to the State. 8. On 5 October 2001 the Chuguyiv Town Court (hereafter “the Chuguyiv Court”) awarded the applicant 42,086 Ukrainian hryvnas (UAH) in salary arrears, compensation and other payments from the Company. The judgment was not appealed against within the one-month statutory time-limit and became final on 5 November 2001. 9. On 30 November 2001 the Company lodged an appeal against the judgment of 5 October 2001. 10. On 10 December 2001 the bailiff service initiated enforcement proceedings. 11. By a ruling of 10 December 2001 the Chuguyiv Court left the appeal of the Company unexamined for failure to comply with procedural requirements, namely having been lodged outside the statutory time-limit without a request for renewal, failure to pay a court fee and shortcomings in the form and content of the appeal. The Company was given ten days to bring its appeal into compliance with relevant procedural law. 12. By a ruling of 10 January 2002, following the Company’s failure to comply with the court’s ruling of 10 December 2001, the Chuguyiv Court returned its appeal unexamined. 13. On 18 November 2002 the enforcement proceedings were suspended due to the insolvency proceedings against the Company initiated by the Commercial Court of Kharkiv on 25 October 2002. 14. On 12 December 2002 the State’s share in the Company was reduced from 25 % to 19.99 %. 15. By a letter of 18 December 2002, the Ordzhonikidzevsky District Bailiffs’ Service informed the applicant that the defendant Company had no funds in its account and that the procedure for the forced sale of assets belonging to the debtor was blocked by the Forced Sale of Property Moratorium Act of 26 November 2001. 16. On 4 March 2003 the Commercial Court of Kharkiv region approved a friendly settlement between the Company and its creditors and discontinued the insolvency proceedings. 17. On 24 March 2003 the enforcement proceedings were resumed. 18. On 30 January 2004, on a complaint by the applicant, the Ordzhonikidzevsky Prosecutor’s Office instituted criminal proceedings against bailiff V. for fraud in relation to the enforcement of the judgment in the applicant’s favour. 19. On 10 February 2004 the defendant Company again lodged an appeal against the judgment of 5 October 2001. It also requested that the time-limit for the appeal be renewed, on the ground that at the time of the impugned judgment of the first-instance court it had been in a difficult economic situation and had been using all its funds to pay off debts to avoid insolvency and, therefore, it had not been able to afford the court fees for an appeal. 20. On 20 February 2004 the Chuguyiv Court allowed the Company’s request for renewal of the time-limit and issued a ruling in which it repeated the Company’s grounds for the request and added that “the court considers it necessary to renew the time-limit for appeal”. The court also noted that its ruling of 20 February 2004 was not subject to appeal. 21. On 1 April 2004, on the basis of the ruling of 20 February 2004, the Ordzhonikidzevskiy Bailiffs’ Service returned the writ of execution to the Chuguyiv Court. 22. On 21 April 2004 the Kharkiv Court of Appeal reviewed the judgment of 5 October 2001, found in part against the applicant and in the other part reviewed the calculation of the requested compensation and awarded the applicant UAH 3.09. 23. On 29 April 2004 the debtor transferred to the bailiff service the amount awarded from it under the decision of 21 April 2004. According to the Government, on 22 June 2004 the applicant was informed that this amount was available for him. According to the applicant he did not receive any such information at that time. 24. On 7 September 2004 the criminal proceedings against bailiff V. were discontinued for lack of proof of a crime. 25. On 15 October 2004 the applicant lodged a cassation appeal against the decision of 21 April 2004 and requested that the time-limit for lodging an appeal be renewed on the ground that he had not been present before the Court of Appeal and he had learned about the above decision only on 6 October 2004. By a ruling of 29 October 2004, the Chuguyiv Court allowed the applicant’s request and renewed the time-limit for lodging a cassation appeal. 26. On 9 November 2005 the Supreme Court quashed the decision of 21 April 2004 on the ground that the court of appeal had considered the case in the applicant’s absence and remitted the case to the court of appeal for a fresh consideration. 27. On 1 March 2006 the Kharkiv Court of Appeal issued a new decision along the same lines as its previous decision of 21 April 2004. 28. On 12 May 2006 the Supreme Court refused the applicant’s request for leave to appeal in cassation. 29. The Act (Закон України “Про введення мораторiю на примусову реалiзацiю майна”) aims at protecting State interests in the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. A moratorium on the enforcement of judgment debts has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set. Section 2 of that Act provides that the prohibition on the forced sale of property includes the execution of writs by the State Bailiffs’ Service on property belonging to such companies. The Act therefore stays the execution of all writs by the State Bailiffs’ Service against the assets of undertakings in which the State holds at least 25% of the share capital. 30. Under section 2 of the Act (Закон України “Про виконавче провадження”), the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under section 85 of the Act, a creditor may make a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Section 86 of the Act entitles a creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for the inadequate enforcement or non-enforcement of that judgment, and to receive compensation. 31. Section 11 of the Act (Закон України “Про державну виконавчу службу”) provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damage caused by a bailiff when enforcing a judgment. Under section 13 of the Act, acts and omissions of the bailiff can be challenged before a superior official or the courts. 32. Article 68 of the Code provided for delayed payment of the court fees or their payment by instalments. These methods of court fee payment could be allowed by a judge with regard to the property status of a party. Such an extension or delay in payment could be granted for a maximum period of three months. 33. Article 89 of the Code provided that the procedural time-limits could be extended or renewed if the court found valid reasons for such an extension or renewal. A refusal to renew a time-limit was subject to appeal. 34. Article 292 of the Code provided for a one-month period for lodging appeals against decisions of the first-instance court and a fifteen-day period for appeal against its rulings. It further provided that these periods could be renewed if the court found valid reasons for their renewal. 35. The new Code of Civil Procedure, as well as the Code of Criminal Procedure and the Code of Administrative Justice provide similar provisions as to the renewal of the procedural time-limits. The Code of Commercial Procedure, however, limits the possibility of renewal to three months.