FIFTH SECTION  CASE OF MITIN v. UKRAINE  (Application no. 38724/02)  JUDGMENT  STRASBOURG  14 February 2008   FINAL  07/07/2008  This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Mitin v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Karel Jungwiert, Volodymyr Butkevych, Margarita Tsatsa-Nikolovska, Javier Borrego Borrego, Renate Jaeger, Mark Villiger, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 22 January 2008,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 38724/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Nikolayevich Mitin (“the applicant”), on 10 September 2002.2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.3. On 22 September 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.THE FACTSI. THE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1959 and lives in the city of Sevastopol, Ukraine.A. First set of proceedings5. At the material time the applicant was a military officer. In November 1998, on an order from his superior, a commanding officer of the A-3009 military unit, he was appointed to a lower post and imposed disciplinary sanctions for various infractions.6. In June 1999 the applicant brought proceedings in the Sevastopolskiy Garrison Military Court (Військовий суд Севастопольського гарнізону) against his commanding officer claiming that he had been sanctioned unfairly. The applicant sought moral damages.7. After several round of courts proceedings, on 20 August 2001 the Navy Military Court of Appeal (Апеляційний суд Військово-Морських Сил України, hereafter “the Navy Court”), acting as a first instance court, found that the disputed disciplinary sanctions had been imposed on the applicant contrary to the relevant military regulations and awarded him 5,000[1] Ukrainian hryvnas (UAH) against the military unit for moral damages. Considering this sum insufficient the applicant appealed in cassation. On 10 January 2002 the Supreme Court (Верховний Суд України) upheld this judgment.8. On 5 November 2001 the Nakhimovskiy District Bailiffs’ Service (Відділ державної виконавчої служби Нахімовського районного управління юстиції м. Севастополя, hereafter “the Nakhimovskiy Bailiffs’ Service”) instituted enforcement proceedings.9. After having attempted, in vain, to withdraw the awarded sum from the account of the military unit concerned, on 21 June 2002 the bailiffs returned the writ of execution to the applicant because of the debtor’s lack of funds. The applicant never resubmitted it to the Bailiff’s Service.10. In September 2002 the applicant attempted to bring administrative proceedings against the Nakhimovskiy Bailiffs’ Service for its alleged inactivity. On 26 September 2002 his application was found inadmissible by the Nakhimovskiy District Court of Sevastopol (Нахімовський районний суд м. Севастополь) on the ground of the applicant’s failure to pay court fees and to specify his claims.11. The applicant filed, to no avail, a number of criminal complaints against his commanding officer with various prosecutors and courts.12. The Government stated that in late 2005 the commanding officer on several occasions invited the applicant to visit the A-3009 military unit in order to collect the money due to him under the Navy Court’s judgment. The letters to this effect were sent to the applicant’s last known address. The applicant denied having received those letters, stating that his new address was known to the authorities. In particular it was indicated in his letters to the Court, the copies of which were sent to the Agent of the Government by the Court Registry.13. On 26 December 2005 the A-3009 military unit paid UAH 5,000 in cash to the applicant’s pension account. The Government did not produce any document related to this event. As the applicant objected to an unauthorised transaction in his account, the bank transferred this amount back to the account of the military unit.14. On 14 March 2006 the military unit A-3009 opened an account in the applicant’s name in the Oshchadbank Bank. According to the copy of bank receipt produced by the Government the reason for this transaction was specified as a “transfer of compensation for moral damage in accordance with a court decision of 20 August 2001 to Mr Mitin”.B. Second set of proceedings15. In early 2004 the applicant was dismissed from the military forces.16. In May 2004 he instituted proceedings in the Sevastopolskiy Garrison Military Court (Військовий суд Севастопольського гарнізону) challenging his dismissal.17. On 14 October 2004 the court rejected the applicant’s claim as being unsubstantiated. On 21 December 2004 the Navy Court rejected the applicant’s appeal and upheld this judgment. On 9 March 2005 the Supreme Court rejected the applicant’s appeal in cassation. II. RELEVANT DOMESTIC LAW18. The relevant domestic law is summarised in the judgment of 29 June 2004 in the case of Voytenko v. Ukraine (no. 18966/02, §§ 20-25). THE LAWI. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 119. The applicant complained of the lengthy non-enforcement of the Navy Court’s judgment of 20 August 2001 in his favour. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 which, in so far as relevant, provide as follows:Article 6 § 1“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”Article 1 of Protocol No. 1“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....”A. Admissibility1. Applicability of Article 6 of the Convention20. The Government submitted that Article 6 § 1 was inapplicable to the proceedings at issue, as the dispute concerned a military officer’s career and therefore was not a “civil” dispute for the purposes of the impugned Convention provision. They, therefore, invited the Court to declare this part of the application inadmissible as being incompatible ratione materiae within the meaning of Article 35 § 3.21. The applicant disagreed.22. The Court notes that at the material time the applicant was an active military officer, and his disputes concerned different conditions of his employment. In a recent judgment Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, 19 April 2007) the Grand Chamber proposed two criteria of applicability of Article 6 to such disputes. According to this judgment Article 6 under its “civil” head shall be applicable to all disputes involving civil servants, unless the national law expressly excludes access to a court for the post of category of staff in question, and this exclusion is justified on objective grounds.23. In the present case the applicant’s claims were accepted, examined, and partially granted by the domestic courts following ordinary rules of civil procedure. Although it is true that the applicant’s case involved the examination of the lawfulness of disciplinary sanctions imposable under specific military regulations, there is nothing to suggest that the proceedings concerning moral damage incurred by an individual as a result of unlawful actions by a state official falls outside the scope of Article 6 of the Convention.24. Therefore, the applicant, despite his special status, was not excluded by the domestic law from the “access to a court” within the meaning of Article 6. The Court concludes that Article 6 is applicable to the domestic proceedings at issue.2. Exhaustion of domestic remedies25. The Government argued that the applicant has failed to exhaust all domestic remedies available to him under the law, as he did not resubmit his writ of execution to the competent Bailiffs’ Service.26. The applicant disagreed.27. The Court reiterates in this respect that it is inappropriate to require an individual who has obtained judgment against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction (see, for example, Scordino v. Italy (no. 1) [GC], cited above, § 198 and Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007). It, therefore, rejects the Government’s argument.3. Conclusion28. The Court notes that the applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non-enforcement of a judgment in the applicant’s favour are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.B. Merits29. The applicant claimed that the lengthy non-enforcement of a court judgment in his favour infringed his right to peaceful enjoyment of possessions guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.30.

Article of the Convention at issue: Article 1
Outcome: violation