CASE OF MIROSHNIK v. UKRAINE
Remainder inadmissible;Violations of Art. 6-1;Violation of P1-1;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
5. The applicant was born in 1955 and resides in the village of Akimovka, the Zaporizhzhya region, Ukraine. 6. In December 1998 the applicant was dismissed from the military forces. 7. On 8 June 1999 the Zaporizhzhya Garrison Military Court (“the Zaporizhzhya Court”) ordered the Zaporizhzhya Regional Military Enlistment Office to pay the applicant 1,260.91 Ukrainian hryvnyas (UAH) for his uniform expenses for the period up to 31 December 1998. 8. On 11 February 2000 the enforcement proceedings were discontinued because of the debtor’s lack of funds and because, according to Article 5 of the Economic Activities of the Armed Forces Act, the property of the Armed Forces could not be used to enforce a court decision. 9. According to the applicant, on 16 October 2001 the decision was enforced in part by the debtor. At 21 August 2007 the decision had not been enforced in full. 10. In June 1999 the applicant instituted proceedings in the Zaporizhzhya Court against his former employer, the Akimovskiy District Military Enlistment Office, claiming an allowance due to him for the period of January-February 1999. The applicant stated that though he was officially dismissed on 31 December 1998, he had actually left the forces on 16 February 1999. 11. On 23 June 1999 the court found for the applicant and awarded him UAH 442.03 for the unpaid allowance to be paid by the Enlistment Office. 12. On 17 August 1999 the South Regional Military Court quashed that decision and remitted the case for a fresh consideration. 13. On 3 November 1999 the Zaporizhzhya Court found against the applicant. 14. On 7 December 1999 the South Regional Military Court upheld that decision. 15. On 11 July 2000 the Supreme Court quashed the decisions of 3 November 1999 and 7 December 1999 upon a protest, lodged by the President of the Supreme Court (at the applicant’s request), and remitted the case for a fresh consideration. 16. The applicant lodged an additional claim asking to change the date of his dismissal and requesting the payment of an insurance premium, compensation for pecuniary and non-pecuniary damage, and the enforcement of the decision of 8 June 1999. 17. On 3 November 2000 the Zaporizhzhya Court, considering the case in the applicant’s presence, changed the date of his dismissal and ordered the Enlistment Office to pay him UAH 791.78 for the unpaid allowance and other payments. 18. The applicant did not appeal against the decision. 19. In a letter of 30 January 2004, the applicant informed the Court that the decision of 3 November 2000 had been enforced in full, without specifying the date of enforcement. 20. In August 2000 the applicant instituted proceedings in the Zaporizhzhya Court against the Enlistment Office and the Ministry of Defence with claims similar to those in the second set of proceedings. 21. On 31 August 2000 the court returned the applicant’s claim, stating that he had failed to pay the court fee and to enclose any evidence in support of his claim as required by the legislation. 22. The applicant neither appealed against that decision nor submitted his claim anew. 23. In November 2000 the applicant instituted proceedings in the Central Regional Military Court against the Ministry of Defence contesting the lawfulness of his dismissal from the military service and seeking compensation for damage. The applicant also clamed that the defendant had been unlawfully ignoring the court decisions in his favour. 24. On 12 December 2000 the court returned the applicant’s claim for res judicata reasons, stating, in particular, that such a claim had already been considered by the courts. 25. On 23 January 2001 the Supreme Court quashed that decision and remitted the case for a fresh consideration, finding that the applicant’s claim had not been considered by the courts before. 26. On 5 March 2001 the Central Regional Military Court returned the applicant’s claim for failure to indicate all the requisites of the claim, and to enclose any evidence in its support, as required by the legislation. 27. The applicant states that this decision was sent to him too late to enable him to appeal against it within the fixed time-limit. The applicant did not submit any request for an extension of the time-limit for appeal. 28. On 12 April 2001 the Supreme Court rejected an appeal by the applicant against the decision of 5 March 2001 under the extraordinary review procedure. 29. The relevant domestic law regarding enforcement of court decisions is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004) 30. The relevant provisions of the Constitution read as follows: “The independence and immunity of judges are guaranteed by the Constitution and the laws of Ukraine. Influencing judges in any manner is prohibited ...” “In the administration of justice, judges are independent and subject only to the law ...” 31. Section 123 of the Code provided that garrison military courts, as first-instance courts, had jurisdiction over civil cases where military servicemen challenged the lawfulness of acts or decisions taken by military officials or military bodies as well as over other civil cases where military servicemen’s rights and freedoms were claimed to be violated, except for cases falling within the jurisdiction of the regional military courts. The regional military courts, as first-instance courts, had jurisdiction over civil cases where the lawfulness of acts or decisions taken by military officials or military bodies having the level of a military association or higher, were challenged. 32. In accordance with Sections 289 and 325 of the Code, appeals against decisions of military garrison courts were to be submitted to the military regional courts. Appeals against decisions of the military regional courts were to be submitted to the Supreme Court. 33. Sections 20, 38-1, 38-3 of the Act provided that the military courts were incorporated into the system of the general courts of Ukraine. They exercised judicial power in the Armed Forces of Ukraine and other military formations allowed by Ukrainian legislation. The judges of the military courts were elected by the Verkhovna Rada of Ukraine for ten years. The candidates, on passing a competitive examination the first time, were elected for five years. Only an acting officer in the army could become a judge of the military court. 34. Section 38-10 of the Act envisaged that the financing, logistics, maintenance and archiving of the military courts and the Military Chamber of the Supreme Court were performed by entities of the Ministry of Defence at the expense of the Ministry of Justice and the Supreme Court, using part of the State Budget allocated specifically for those purposes. 35. According to Section 38-11 of the Act the servicemen of the military courts were considered to be in military service and constituted a part of the staff of the Armed Forces of Ukraine. The judges of the military courts were awarded military ranks by the President of Ukraine upon the joint submission of the Minster of Justice and the Chairman of the Supreme Court (as regards the judges of the military garrison courts, military regional courts, and naval courts) or upon the sole submission of the Chairman of the Supreme Court (as regards the judges of the military chamber of the Supreme Court). 36. Section 43 of the Act provided that a military chamber was incorporated into the structure of the Supreme Court. According to Section 49 of the Act the chambers of the Supreme Court could consider cases as, inter alia, the court of appeal instance. The Act was repealed on 7 February 2002. 37. According to Section 11 of the Act the independence of judges was guaranteed by the manner of their appointment, termination and suspension of their office; by the special procedure of awarding military ranks to the military judges; by the special procedure of administration of justice; by the secrecy of the decision-making process; by prohibition of interference with the administration of justice; by the establishment of the legal responsibility for contempt of court; by the judges’ right to resign; by the judges’ inviolability; by the provision of the technical and informational conditions necessary for the operation of the courts; by the material support and social welfare programs provided for the judges; by the special procedure of the courts’ financing; and by the system of judicial self-government. 38. Section 44 of the Act foresaw that judges of the military courts who needed to improve their living conditions were provided with an appropriate flat or house by the Ministry of Defence within the term of six months from the date of their appointment. 39. Section 3 of the Act provided that the Armed Forces of Ukraine were subordinate to the Ministry of Defence.