KOROLKOV and KAMARDA v. UKRAINE
Inadmissible
Peer Lorenzen
Mr Aleksey Fedorovich Korolkov (“the first applicant”) was born in 1934 and died on 7 February 2005. His wife, Mrs Valentina Fedorovna Korolkova, expressed her wish to pursue the application of her late husband. Mrs Vera Nikolayevna Kamarda (“the second applicant”) was born in 1931 and lives in Dniprodzerzhynsk. Both applicants were represented by Mr P. Kukta. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska. The facts of the case, as submitted by the parties, may be summarised as follows. In August 2001 the applicants instituted two separate sets of proceedings in the Zavodskyy District Court of Dniprodzerzhynsk against the State of Ukraine and the President of Ukraine, seeking recovery of their indexed deposits with the State Savings Bank (“the Bank”) made before 2 January 1992, and compensation. By two judgments of 28 and 30 November 2001, the court ordered the Dnipropetrovsk Regional Department of the Bank to pay, respectively, the second applicant UAH 7,521.19 and the first applicant UAH 1,865.85, which corresponded to the amounts of their indexed deposits. The relevant parts of the judgement of 28 November 2001, in which the court gave reasons for its decision and stated the decision itself, read as follows: “... According to Article 41 of the Constitution of Ukraine, the right to use private property is inviolable. Pursuant to Article 22 of the Constitution of Ukraine, all the laws and normative acts adopted after the Constitution shall not diminish the content and scope of the rights and duties of the citizens, provided for in the Constitution of Ukraine. The provisions of the Constitution have the highest legal force... According to Article 2 of the Law of Ukraine on the State Guarantees of Repayment of Deposits of the Citizens of Ukraine, the State undertakes to maintain and update the real value of citizens’ bank deposits and guarantees compensation pursuant to the relevant rules. The payment of compensation [to Ukrainian citizens] for loss of value of money deposits shall be borne by the State Treasury of Ukraine. This provision of the Law is decisive for the merits of the [applicant’s] claims. In fact, the [State] Savings Bank [of Ukraine] pleads no defence. The provisions of Article 7 of the above Law on gradual repayment of the deposits to the citizens of Ukraine concerns the order of enforcement of a court decision on Repayment of an indexed deposit. Therefore, the claims of Mrs Kamarda for Repayment of the indexed deposit shall be allowed within the limits of the sums, as stated in the compensation accounts... Pursuant to ..., the court Decided: To order the Dnipropetrovsk Regional Department of the State Savings Bank of Ukraine to pay Mrs Kamarda the indexed deposit from the compensation accounts in the Dnipropetrovsk Regional Department nos. ... [in the amount of] UAH 193.79, UAH 1,503.60 and UAH 5,823.80, as well as to pay the State UAH 51 in respect of the court fees. To reject the remainder of the [applicant’s] claims and [her claim for] compensation for non-pecuniary damage, as well as [her] claims against the Ministry of Justice of Ukraine, the Dniprodzerzhynsk [Town Department of the] State Treasury, and the President of Ukraine.” The court used similar wording in its judgment of 30 November 2001. In December 2001 the applicants lodged with the Zavodskyy District Court their appeals against the judgments of 28 and 30 November 2001. In January 2002 they withdrew their appeals. On 21 January 2002 the Zavodskyy District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings. By two separate decisions of 8 April 2002, the Bailiffs’ Service discontinued the enforcement proceedings on the grounds that the Dnipropetrovsk Regional Department of the Bank was not a separate legal entity and that it was the Cabinet of Ministers of Ukraine which was competent to establish the order of repayment of the indexed deposits under the Law of Ukraine on the State Budget. The applicants did not challenge these decisions before the domestic courts. In 2002 the first applicant was paid UAH 50 in repayment of his indexed deposit pursuant to the resolution of the Cabinet of Ministers of Ukraine of 5 April 2002. According to the Government, the first applicant failed to claim UAH 50 to which he was entitled in 2003. In December 2002 and August 2003 the second applicant received a total of UAH 100 pursuant to the resolutions passed by the Cabinet of Ministers concerning repayment of indexed deposits to the citizens of Ukraine in 2002 and 2003. There is no information in the case file whether further payments were made in respect of the judgments of 28 and 30 November 2001. 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.” 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 responsible for the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation. 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. Pursuant to Article 1 of the Law, the State undertakes to pay the citizens of Ukraine compensation for the loss of their money deposited before 2 January 1992 with, inter alia, the branches of the Savings Bank of the USSR, which carried out business on the territory of Ukraine. The Ukrainian citizens, who deposited their money with the Savings Bank and the State Insurance Company of Ukraine in 1992-1994, are entitled to compensation, provided that the money has remained in the accounts of the Savings Bank of Ukraine for at least one full year between 1992 and 1995. Article 7 of the Law provides that the money deposits shall be repaid gradually, taking into account the amount of the deposits, within the limits of funds, allocated for that purpose in the State Budget of Ukraine for a given year. The persons eligible for repayment of their deposits were defined in regulations approved each year by the Cabinet of Ministers for the forthcoming year. For instance, on 5 April 2002 the Cabinet passed a resolution concerning the repayment in 2002 of the value of deposits made by the Ukrainian citizens before 2 January 1992 in branches of the former Savings Bank of the USSR, which carried out business on the territory of Ukraine. By that resolution, the Government allocated UAH 500,000,000 from the national budget to enable individual deposits to be indexed. Of that amount, UAH 65,000,000 was allocated to the heirs of account holders who had died between 1997 and 2002, on condition that they had not yet received the grant available under Article 8 of the Law of 21 November 1996. The remaining UAH 435,000,000 was to be divided between the other account holders. The amount payable to each beneficiary was, in principle, limited to UAH 50. The Cabinet passed similar resolutions in respect of 2003-2005.