CASE OF GLOBA v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1949 and lives in Kulikove, Poltava Region. 6. At the material time the applicant was employed by a collective agricultural enterprise in which the State held no shares. The enterprise had its own housing which was allocated to its workers or members. Since there was no vacant housing for the applicant he was placed first in the waiting list. When a flat became available, by a decision of the enterprise of 18 August 1995 two private individuals who were behind the applicant in the waiting list were offered the tenancy of the flat. On the same date and based on this decision, the Kulykove Town Council (“the Town Council”) issued a tenancy authorisation (ордер на житлове приміщення) in the name of the private persons in respect of the flat. 7. In November 1995 the applicant instituted proceedings before the Leninskyy District Court, Poltava (“the Leninsky Court”) against the Town Council, the private individuals and the enterprise. He sought revocation of the tenancy allocation. 8. On 10 March 1999 the Leninsky Court allowed the applicant’s claim in part, finding that he had the right to the tenancy of the flat since, according to the internal regulations of the enterprise and national law, he had priority over private individuals for occupation of the flat. The court ordered the private individuals to be evicted from the flat and the enterprise to allocate the flat to the applicant and to find other housing for the two private individuals to be evicted. On 8 April 1999 the Poltava Regional Court (since June 2001 the Poltava Regional Court of Appeal, “the Court of Appeal”) upheld the judgment of 10 March 1999 and it became final. 9. On 26 January 2000 the applicant requested the Prosecutor General to intervene by lodging an appeal for supervisory review (protest) against the court decisions. On 4 February 2000 the Presidium of the Court of Appeal, acting on the protest, changed part of the lower courts’ decisions in respect of the size of the housing to be provided to the private individuals. 10. On 12 December 2000 the Leninsky Court rejected the applicant’s request for interpretation of the judgment of 10 March 1999. The applicant did not appeal. 11. Having twice refused to open enforcement proceedings due to shortcomings in the writs of execution of the judgment of 10 March 1999, the Poltava Oktiabrsky District Bailiffs’ Service (“the bailiffs”) eventually opened the proceedings on 8 February 2001. Subsequently, the bailiffs several times requested the Leninsky Court to clarify the judgment at issue as, from their point of view, it was not sufficiently clear for enforcement purposes. 12. On 4 September 2002 the Town Council decided to take over the property, including the housing of the enterprise, which had gone into liquidation in the meantime. 13. On 24 December 2002 the bailiffs, on the basis of this decision, replaced the debtor company with the Town Council and ordered the head of the Town Council to comply with the judgment. Subsequently, due to non-compliance with the judgment, the bailiffs twice fined the Head of the Town Council. The latter challenged these decisions before the Poltava Oktiabrsky District Court, which, on 1 October 2004, found the bailiffs’ decision lawful and reasoned, but quashed the imposed fines on the ground that the debtor had not complied with the judgment for lack of appropriate housing. The parties did not appeal. 14. In the meantime, on 29 September 2004, the Town Council had authorised the private individuals to privatise the flat in issue. 15. On 14 March 2005 the Leninsky Court rejected the requests by the bailiffs and the applicant for the manner of execution of the judgment to be changed. On 7 June 2005 the Court of Appeal upheld the first-instance decision, finding that the bailiffs had failed to enforce the judgment by not attaching the flat, which had led to its privatisation, and by not taking any action against the Town Council. This decision was upheld by the Supreme Court on 4 April 2006. 16. On 16 February 2009 the Leninsky Court rejected the applicant’s request for the manner of execution of the judgment to be changed. It found that the judgment was not enforced because the occupants of the flat had in the meantime privatised it and the Town Council had no substitute housing whatsoever. The higher courts left the applicant’s appeals unexamined as the ruling of 16 February 2009 was not subject to appeal. 17. The flat at issue remains occupied by the private individuals. According to the Government, the applicant is now occupying another flat that the enterprise provided him with on an unspecified date. According to the applicant, he has not been offered any housing since 2000. 18. On 27 July 2006 the applicant lodged a complaint with the Leninsky Court, alleging that when opening the enforcement proceedings the bailiffs had failed to attach the flat in issue. He requested the court to take measures in respect of the bailiffs so that they could enforce the judgment, and to lodge a claim on his behalf seeking revocation of the privatisation of the flat. On 11 January 2007 the court rejected the complaint, finding that the applicant’s requests for relief were without merit. It also found that the bailiffs had not taken all possible measures to ensure the implementation of the judgment when opening the enforcement proceedings, but that subsequently they looked for ways, and took measures, to implement it. On 6 March and 19 November 2007 respectively the Court of Appeal and the Supreme Court upheld the decision of 11 January 2007. 19. By the bailiffs’ most recent decision, of 30 September 2008, the enforcement proceedings were discontinued, with the judgment of 10 March 1999 remaining unenforced. The applicant challenged this decision. On 4 November 2008 the Leninsky Court confirmed the decision, finding, in particular, that the bailiffs requested criminal prosecution of the Head of the Town Council and had no other option to enforce the judgement. On 11 December 2008 the Court of Appeal upheld the ruling of 4 November 2008. The parties did not appeal on points of law.