FIFTH SECTION      CASE OF GIMADULINA AND OTHERS v. UKRAINE (Applications nos. 30675/06, 30785/06, 32818/06, 34468/06 and 49001/06)         JUDGMENT STRASBOURG 10 December 2009 FINAL 10/03/2010 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 Gimadulina and Others v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Rait Maruste, Isabelle Berro-Lefèvre, Zdravka Kalaydjieva, judges, Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 17 November 2009,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in five applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals (“the applicants”):no. 30675/06 lodged on 18 July 2006 by Mrs Yelena Vladimirovna Gimadulina, who was born in 1969 and lives in Novogrodivka, Donetsk region, Ukraine;no. 30785/06 lodged on 17 July 2006 by Mr Andrey Aleksandrovich Konyayev, who was born in 1969 and lives in Novogrodivka, Donetsk region, Ukraine;no. 32818/06 lodged on 1 August 2006 by Mrs Valentina Grigoryevna Kozlova, who was born in 1948 and lives in Vinnytsya, Ukraine;no. 34468/06 lodged on 7 August 2006 by Mr Anatoliy Klimentyevich Dankov, who was born in 1938 and lives in Novogrodivka, Donetsk region, Ukraine;no. 49001/06 lodged on 25 November 2006 by Mr Mykola Oleksandrovych Bondarenko, who was born in 1954 and lives in Vinnytsya, Ukraine.2. Mrs Kozlova was represented before the Court by Mr V. Shulgin, a lawyer practising in Vinnytsya, Ukraine.3. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.4. On 15 October 2008 the President of the Fifth Section decided to communicate to the Government the applicants' complaints under Articles 6 § 1 and 13 of the Convention, and Article 1 of Protocol No. 1. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. On various dates each of the applicants received one or more final decisions awarding payments by companies (see appendix for details) in which the State holds at least 25% of the share capital, and instituted enforcement proceedings to collect the payments.6. After those decisions had become final, insolvency or liquidation proceedings against the debtors were initiated. The State Bailiffs' Service then terminated the enforcement proceedings against them and transferred the applicants' writs of enforcement to the relevant liquidation commissions for further processing. Some of the debtors were finally liquidated.7. In view of the lengthy non-enforcement of the decisions in their favour, some of the applicants (Mrs Gimadulina, Mr Konyayev and Mr Dankov) unsuccessfully sued the State Bailiff's Service for damages. The other applicants complained to various State authorities, also to no avail.8. Most of the decisions in the applicants' favour were enforced (see appendix for details).II. RELEVANT DOMESTIC LAW9. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19).THE LAWI. JOINDER OF THE APPLICATIONS10. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.II. LENGTHY NON-ENFORCEMENT OF THE DECISIONS IN THE APPLICANTS' FAVOUR11. The applicants complained that by failing to enforce the decisions given in their favour the respondent State had violated Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read, in so far as relevant, 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 ....”They also complained that they had no effective remedy for their complaints, in breach of Article 13 of the Convention, which reads as follows:“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”A. Admissibility1. The parties' submissions12. The Government submitted that Mrs Kozlova and Mr Bondarenko had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In particular, they maintained that these applicants had not availed themselves of the opportunity to be registered as creditors in the insolvency and liquidation proceedings against the debtor companies, and had failed to challenge the liquidation commission's inactivity before the relevant commercial court or apply to any domestic court to challenge the allegedly inadequate enforcement by the Bailiffs' Service of the decisions in their favour.13. The Government further contended that Mr Bondarenko had received the payment relating to the decision of 5 June 2002 by November 2004. In support they provided copies of letters from the debtor dated 2 November 2004 and 17 March 2005, stating that salary arrears had been paid to the applicant, and a letter from the State Bailiffs' Service apparently sent to the applicant in 2005 (no date specified) stating that he had been paid the total amount of 3,370.67 Ukrainian hryvnias (UAH) (about 680 euros (EUR)) in the period between September and November 2002. Although they could not substantiate their argument with more convincing evidence, as the relevant enforcement documents had been destroyed, they requested the Court to declare that part of his application incompatible ratione personae. Later, commenting on the applicant's just satisfaction claims, the Government stated that they had no objection to the enforcement of the decisions taken in the applicant's favour.14. The applicants disagreed. In particular, Mr Bondarenko pleaded that the decision of 5 June 2002 was still unenforced and submitted in support a copy of the final court decision of 24 February 2006, in which the court acknowledged the ongoing failure of the Bailiffs' Service to enforce the impugned decision.2. The Court's assessment15. As regards the Government's objection that the applicants had failed to exhaust domestic remedies, the Court notes that similar objections have already been rejected in a number of judgments adopted by the Court (see Sokur v. Ukraine (dec.), no. 29439/02, 16 December 2003; Sychev v. Ukraine, no. 4773/02, §§ 42-46, 11 October 2005; and Trykhlib v. Ukraine, no. 58312/00, §§ 38-43, 20 September 2005). The Court considers that these objections must be rejected in the instant case for the same reasons.16. As to the question whether the decision of 5 June 2002 has been enforced, the Court, having regard the quality of proof submitted by the parties in support of their contentions and the Government's position set out in the later stages of the present proceedings, considers that the decision in question has still not been enforced for the purposes of the case at hand.17. The Court further points out that the judgment of 27 October 2006 taken in favour of Mrs Kozlova was enforced by 1 October 2007, that is within less than a year. Such a period cannot, in the Court's view, be considered unreasonable. In these circumstances, the Court considers that that part of application no. 32818/06 must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.18. The Court notes that the remaining complaints 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. They must therefore be declared admissible.B. Merits19.

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