FIFTH SECTION  CASE OF KOLESNIK v. UKRAINE  (Application no. 20824/02)    JUDGMENT   STRASBOURG   10 April 2008   FINAL  29/09/2008  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 Kolesnik v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:Peer Lorenzen, President, Karel Jungwiert, Volodymyr Butkevych, Renate Jaeger, Mark Villiger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, judges,and of Claudia Westerdiek, Section Registrar. Having deliberated in private on 18 March 2008, Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 20824/02) 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 Viktor Vasilyevich Kolesnik (“the applicant”), on 24 April 2002.2. The applicant was represented by Mr I. Pogasiy, a lawyer practising in Kirovograd. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeriya Lutkovska.3. On 9 September 2004 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 currently resides in Kirovograd.A. Proceedings concerning retirement benefits5. In January 2001 the applicant, a former military serviceman brought proceedings against A-0981 military unit, where he had served before retirement, seeking recovery of redundancy pay and compensation for his uniform. On 12 February 2001 the Military Court of Cherkassy Garrison (Військовий суд Черкаського гарнізону) found for the applicant and awarded him a total of 2,935 Ukrainian hryvnias (UAH)[1].6. On 20 March 2001 the military unit concerned paid the applicant UAH 2,420[2].7. On 17 May 2001 the Bailiffs’ Service of the Leninskiy District of Kirovograd (Відділ державної виконавчої служби Ленінського районного управління юстиції м. Кіровограда, hereafter “the Leninskiy Bailiffs’ Service”) instituted enforcement proceedings in respect of UAH 515[3], the outstanding amount of the court award.8. Although the property and accounts of the military unit were frozen by the Leninskiy Bailiffs’ Service the funds obtained were insufficient for the payment of the amount due to the applicant.9. On 26 March 2003 the Leninskiy Bailiffs’ Service forwarded the applicant’s writ of execution together with the enforcement case-file to the Bailiffs’ Service of the Oleksandrivskiy district of Kirovograd region (Відділ державної виконавчої служби Олександрівського районного управління юстиції Кіровоградської області, hereafter “the Oleksandrivskiy Bailiffs’ Service”).10. According to a bank transfer order produced by the Government, on 30 November 2004 the Oleksandrivskiy Bailiffs’ Service sent UAH 2,073[4] via postal transfer to an unspecified recipient or recipients. This sum corresponds to the total amount of the remaining debts owed to the applicant and Mr Mayadnnyk, the applicant in case no. 20826/02.11. On 1 December 2004 the Oleksandrivskiy Bailiffs’ Service terminated the proceedings in the applicant’s enforcement case on the grounds that the judgment of 12 February 2001 had been executed in full. The applicant stated that he had not been informed of the transfer and had not received any money as a result of it.12. On 21 June 2007 the Oleksandrivskiy Bailiffs’ Service made a postal transfer in the applicant’s name of the remaining amount. On the same day the applicant collected this money.B. Proceedings concerning compensation for bailiffs’ inactivity13. On 4 March 2003 the applicant brought proceedings against the Leninskiy Bailiffs’ Service claiming moral damages for its alleged inactivity and compensation for the devaluation of the sum awarded to him. On 28 July 2003 the Leninsky District Court of Kirovograd (Ленінський районний суд м. Кіровоград, hereafter “the Leninskiy Court”) granted this claim in part and awarded the applicant UAH 1,000[5] in compensation for non-pecuniary damage incurred as the result of the Leninskiy Bailiffs’ Service’s failure to perform in time its duties set forth in the Law of 21 April 1999 “on Enforcement Proceedings”.14. On 30 October 2003 the Leninskiy Court granted the Leninskiy Bailiffs’ Service leave to appeal out of time against this judgment. On 13 November 2003 the Leninskiy Bailiffs’ Service filed an appeal. Having sought and received the applicant’s written comments on this appeal, on an unspecified date the Leninskiy Court referred it to the Kirovograd Regional Court of Appeal (Апеляційний суд Кіровоградської області).15. On 9 February 2004 the Leninskiy Bailiffs’ Service opened the enforcement proceedings in respect of the judgment of 28 July 2003 and immediately terminated them on the ground that appeal proceedings were under way in respect of the judgment concerned. Despite several requests of the Court, neither the applicant nor the Government furnished any information on the course or the outcome of these proceedings.II. RELEVANT DOMESTIC LAW16. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).17. Article 40-1 of the Law of Ukraine of 21 April 1999 “on Enforcement Proceedings” provides the following:“The writ of execution, which has been accepted by the bailiff for processing, shall be returned to the court which had issued it if the court has granted a request for appeal out of time against the judgment in respect of which this writ had been issued... The decision to return the writ of execution can be appealed against to a court.”THE LAWI. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 118. The applicant complained about the non-execution of the judgments of 12 February 2001 and 28 July 2003 given in his favour. He relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, 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 13“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.”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. Alleged non-enforcement of the judgment of 12 February 200119. The Government argued that the applicant lost his victim status after the execution of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001.20. The applicant disagreed.21. The Court notes that this objection is similar to that which the Court has already dismissed in a number of judgments (see, for example, Voytenko v. Ukraine, no. 18966/02, §§ 27-35, 29 June 2004 and Romashov v. Ukraine, no. 67534/01, §§ 26-27, 27 July 2004). The Court considers that the present objection must be rejected for the same reasons.22. The Court notes that the applicant’s complaints concerning the non-enforcement of the Military Court of Cherkassy Garrison’s judgment of 12 February 2001 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.2. Alleged non-enforcement of the judgment of 28 July 200323. The Government maintained that as the Leninskiy Bailiffs’ Service, the defendant in these proceedings was granted leave to appeal out of time against the judgment at issue, there was no obligation on the State to ensure the enforcement of this judgment.24. The applicant disagreed.25. The Court notes that on 30 October 2003 the Leninskiy Court granted the Leninskiy Bailiffs’ Service’s request for leave to appeal out of time. Pursuant to Article 40-1 of the Law “on Enforcement Proceedings”, a bailiff dealing with the applicant’s enforcement case decided to return the writ of execution to the Leninskiy Court. The applicant did not appeal against this decision.26. The Court, theretofore, finds that the applicant has failed to show that there was a final and binding court judgment, the lengthy non-enforcement of which could give rise to a breach of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1. This part of the application, therefore, should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention as being manifestly ill-founded.B. Merits27.

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