FIFTH SECTION     CASE OF KALASHNYKOV v. UKRAINE (Application no. 22709/02)      JUDGMENT   STRASBOURG 11 December 2008  FINAL 11/03/2009 This judgment may be subject to editorial revision.In the case of Kalashnykov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Rait Maruste, Karel Jungwiert, Volodymyr Butkevych, Renate Jaeger, Mark Villiger, Mirjana Lazarova Trajkovska, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 18 November 2008,Delivers the following judgment, which was adopted on the last‑mentioned date:PROCEDURE1. The case originated in an application (no. 22709/02) 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 Mykola Vasylyovych Kalashnykov (“the applicant”), on 27 July 2001.2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.3. On 11 September 2007 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 1948 and lives in the city of Mykolaiv, Ukraine.5. The applicant is a former employer of the open joint-stock company “Avtobaza” (“the company”) situated in the town of Ochakiv, the Mykolaiv region. The State have not held any share in the company since February 1999.A. Proceedings against the company and enforcement of the judgment of 3 April 20016. On 13 May 1998 the Ochakiv Court ordered the company to pay the applicant UAH 3.176[1] in salary arrears. This judgment was enforced in full on an unspecified date in 2002.7. While the enforcement proceedings in respect of the above judgment were still pending, the applicant instituted proceedings in the Ochakiv Court against the Ochakiv Bailiffs’ Service and the company claiming compensation for pecuniary damage caused to him due to the non-enforcement of the judgment of 13 May 1998 in due time.8. On 3 April 2001 the court ordered that the company pay the applicant UAH 2.283[2] in compensation for inflation losses. By the same judgment, the court rejected the applicant’s claims against the Bailiffs’ Service as unsubstantiated. This judgment became final and the enforcement writ was transferred to the Bailiffs’ Service for enforcement.9. On 8 May 2003 the Bailiffs’ Service terminated the enforcement proceedings on the ground that the company had been declared bankrupt by the decision of the Mykolayiv Regional Commercial Court of 17 December 2002.10. The judgment of 3 April 2001 remains unenforced.B. Proceedings against the Bailiffs’ Service and enforcement of the judgment of 26 November 200211. In September 2001, while the enforcement proceedings in respect of the judgment of 3 April 2001 were still pending, the applicant instituted proceedings in the Ochakiv Court against the Ochakiv Bailiffs’ Service seeking compensation for the latter’s failure to act.12. On 26 November 2002 the court found in part for the applicant and ordered the Bailiffs’ Service to pay him UAH 825[3] in compensation for non-pecuniary damage caused as result of the non-enforcement of the judgment of 3 April 2001.13. On 12 May 2003 the Ochakiv Bailiffs’ Service terminated the enforcement proceedings in view of their own lack of funds.14. The judgment of 26 November 2002 remains unenforced.II. RELEVANT DOMESTIC LAW15. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).THE LAWI. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION16. The applicant complained under Article 6 § 1 and 13 of the Convention about the State authorities’ failure to enforce the judgments of the Ochakiv Court of 3 April 2001 and 26 November 2002. These provisions of the Convention provide, insofar 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 13Everyone 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. Non-enforcement of the judgment of 3 April 200117. The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaint, as he never requested to be registered as a company creditor in bankruptcy proceedings. They further maintained that since February 1999 the State had not held any share in the company and therefore the State could not be held responsible for its debts.18. The Court observes that the company become private in 1999, i.e. before the judgment of 3 April 2001 was pronounced. Thus the State’s responsibility in the present case extends no further then the involvement of State bodies in the enforcement procedures (see Shestakov v. Russia, no. 48757/99, decision of 18 June 2002).19. The Court notes that the applicant’s complaint concerns two different periods of time, in particular, the period prior to 26 November 2002, i.e. the date on which the Ochakiv Court ruled on his complaint about the inactivity of the Bailiffs’ Service in respect of enforcement of the judgment of 3 April 2001, and the period after 26 November 2002.20. In respect to the period prior to 26 November 2002, the applicant cannot be considered a “victim” of a violation of his rights guaranteed by Article 6 §1 as the Bailiffs’ inactivity for the period in question was established, acknowledged and compensated. The fact that the applicant did not receive the compensation awarded to him is a separate issue of non-enforcement (see Terem Ltd, Chechetkin and Olius v. Ukraine, no. 70297/01, § 32, 18 October 2005). Therefore this complaint should be rejected under Article 35 §§ 3 and 4 of the Convention as incompatible ratione personae.21. As to the period after 26 November 2002, the applicant failed to challenge the allegedly inadequate enforcement of the judgment of 3 April 2001 by the Bailiffs’ Service before the domestic courts and therefore has not exhausted all domestic remedies available to him under Ukrainian law (see Golovin v. Ukraine, cited above, § 26 and Dzizin v. Ukraine (dec.), no 1086/02, 24 June 2003). This part of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.22. In the light of the above conclusions, the Court finds that the applicant’s complaint under Article 13 should be rejected as manifestly ill-founded.2. Non-enforcement of the judgment of 26 November 200223. The Government contended that the applicant had not exhausted all domestic remedies available to him since he had not challenged the actions of the Bailiffs’ Service before the domestic courts.24. The applicant disagreed.25. The Court observes that it has already dismissed the Government’s similar contentions in the cases in which the non-enforcement of judgments against State bodies was prevented because of the failure of the State to take any budgetary or legislative measures, rather than by a bailiffs’ misconduct (see, for instance, Voytenko v. Ukraine, no. 18966/02, § 30-31, 29 June 2004).26. The Court finds no reason to reach a different conclusion in the present case. Accordingly, the applicant’s complaint must therefore be declared admissible.B. Merits27.

Article of the Convention at issue: Article 6
Outcome: violation