CASE OF ZUBKO AND OTHERS v. UKRAINE
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award
Peer Lorenzen;Zoryana Bortnovska
4. The first applicant was born in 1954, the second applicant in 1971 and the fourth applicant in 1963. The first, second and fourth applicants are judges who live in Kirovograd. The third applicant, a retired judge, was born in 1942 and currently lives in Gayvoron in the Kirovograd region. 5. In November 2002 the first applicant lodged complaints with the Pechersky District Court of Kyiv (“the Pechersky District Court”) against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment. 6. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant 5,807.26 Ukrainian hryvnas (UAH) in compensation. 7. On 9 July 2003 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld this judgment and it became final. 8. On 11 August 2003 the Pechersky District Bailiffs' Service (“the PBS”) decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the execution writs with the State Treasury. 9. On 22 September 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds, and stated that responsibility for enforcement lay with the State Judicial Administration. 10. On 6 November 2004 the applicant received the sum due to him under the judgment of 16 December 2002 (payment order no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.) 11. In November 2002 the applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment. 12. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 10,291.61 in compensation. 13. On 9 July 2003 the Court of Appeal upheld this judgment and it became final. 14. On 11 August 2003 the PBS decided not to initiate enforcement proceedings in the case and informed the applicant that she should lodge the execution writs with the State Treasury. 15. On 5 February 2004 the State Treasury returned the writs of execution in respect of the judgment of 16 December 2002, which remained unenforced owing to a lack of funds in the State budget. 16. On 15 November 2004 the applicant received the sum due to her (payment order no. 173). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.) 17. On 22 March 2000 the third applicant retired, following a decision of the Verkhovna Rada to dismiss him. 18. In November 2001 the applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment. 19. On 14 January 2002 the Pechersky District Court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 4,822 in compensation. 20. On 8 May 2002 the Court of Appeal upheld this judgment and it became final. 21. On 21 May 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds. 22. On 8 September 2003 the Kyiv City Department of Justice informed the applicant that the judgment could not be enforced owing to a lack of funds in the State budget for such expenditure. 23. On 8 September 2003 the Deputy Head of the State Judicial Administration informed the applicant that the judicial administration was not liable for payment of debts that had been incurred before it had been established. 24. On 22 December 2003 the PBS returned the writ of execution to the applicant on the ground that there were no funds in the budget of the State Treasury for the enforcement of such judgments. 25. On 6 November 2004 the applicant received the sum awarded to him by the judgment of 14 January 2002 (payment order no. 163). 26. On 30 November 2004 the applicant received the sum due to him in the form of a payment order (no. 3698) to his bank account). (The enforcement proceedings lasted from May 2002 to November 2004, that is, for about two years and six months.) 27. In November 2002 the fourth applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment. 28. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 5,978.34 in compensation. 29. On 9 July 2003 the Court of Appeal upheld this judgment and it became final. 30. On 11 August 2003 the PBS decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the writs with the State Treasury. 31. In October 2003 the applicant lodged the writs of execution with the State Treasury. On 10 November 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds, and stated that responsibility for enforcement lay with the State Judicial Administration. 32. On 6 November 2004 the applicant received the sum due to him (payment order no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.) 33. The relevant provisions of the Constitution of Ukraine read as follows: “All expenditure by the State for social purposes, and the amounts and aims thereof, shall be determined by the State Budget Act.” “Everyone shall have the right to work, including the possibility to earn his or her living by labour which he or she freely chooses or to which he or she freely agrees. ... The right to timely payment for work shall be protected by law.” “The independence and immunity of judges shall be guaranteed by the Constitution and the laws of Ukraine. ... Influencing judges in any manner shall be prohibited.” “Justice shall be administered by professional judges and, in cases determined by law, by lay assessors and jurors. Professional judges shall not belong to political parties or trade unions, take part in any political activity, hold a representative mandate, occupy any other paid position or perform other remunerated work except in the academic, teaching and creative spheres. ...” “In the administration of justice, judges shall be independent and subject only to the law.” “The State shall ensure the funding and proper conditions for the operation of the courts and the activity of judges. Expenditure for the maintenance of the courts shall be allocated separately in the State budget of Ukraine. ...” 34. Section 123 of the Judiciary Act provides that judges' salaries and social-security benefits shall be such as to ensure their financial independence and shall be determined in accordance with the Status of Judges Act. The amount of a judicial salary cannot be reduced. 35. The relevant provisions of the Budgetary Code read as follows (Law no. 2542): “... Budgetary funds shall be spent for the purposes determined by budgetary allocations only...” “...Budget commitments can be undertaken and payments from the State budget made only in so far as budgetary allocations exist for these purposes.” 36. The State Budget Act provides that the writing-off of funds from the State budget pursuant to a court judgment delivered in favour of the employees of an organisation in receipt of budgetary funds, who are entitled to certain benefits, shall be carried out from the single treasury account of the State Treasury at the expense and within the limits of the budget allocations fixed for financing that organisation. 37. The State budget provided UAH 1,067,200 for the enforcement of judgments awarding judicial salaries and benefit arrears. 38. Section 20-1 of the Law provides that the bailiffs' departments of the Ministry of Justice shall be responsible for the enforcement of judgments concerning the debts of the executive branch of Government. 39. The Decree provides that the State Judicial Administration shall be responsible for organising the financial planning and accounting of the courts and for preparing an estimate of the courts' budgetary needs. 40. In accordance with section 4 of the Regulations, the State Treasury is responsible for the implementation of the State budget and for monitoring its expenditure. 41. The relevant extracts from the Recommendation read as follows: 1. Proper conditions should be provided to enable judges to work efficiently and, in particular, by: ... b. ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities; ...” 42. The relevant extracts from the Explanatory Memorandum read as follows: “29. Status and remuneration are important factors determining appropriate working conditions (see paragraph 1.b). The status accorded to judges should be commensurate with the dignity of their profession and their remuneration should represent sufficient compensation for their burden of responsibilities. These factors are essential to the independence of judges, especially the recognition of the importance of their role as judges, expressed in terms of due respect and adequate financial remuneration. 30. Paragraph 1.b is closely bound up with the reference in Principle I to all decisions concerning the professional life of judges, which obviously includes their status and their remuneration.” 43. The relevant extracts from Chapter 6 of the European Charter on the Statute for Judges, “Remuneration and Social Welfare”, read as follows: “6.1. Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality.”