FOURTH SECTION       CASE OF GRAFOV v. UKRAINE (Application no. 4809/10)       JUDGMENT  STRASBOURG 18 December 2018       This judgment is final but it may be subject to editorial revision. In the case of Grafov v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Faris Vehabović, President, Carlo Ranzoni, Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,Having deliberated in private on 27 November 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 4809/10) 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 Mykhaylo Yevgenovych Grafov (“the applicant”), on 12 January 2010.2. The applicant was represented by Mr I.B. Baytsar, a lawyer practising in Chernivtsi, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.3. The applicant complained under Article 1 of Protocol No. 1 to the Convention that following a mistake of the State bailiffs he was deprived of his property and was not compensated for it.4. On 30 March 2015 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1977 and lives in Chernivtsi.6. In October 2002 the Zalishchytskyy Local Court of Ternopil Region issued a writ of enforcement in a case against a private company, U. The parties did not provide any documents related to the proceedings against company U.7. Under that writ in March 2005 the State Bailiffs’ Service seized, among other property items which belonged to company U., an industrial construction (a 2,000 sq. meters metallic shed) of a declared worth of 98,000 Ukrainian hryvnas (UAH) equivalent at the material time to around 13,950 euros (EUR).8. In December 2005 the State Bailiffs’ Service concluded an agreement with a private company M. to hold an auction in order to sell the seized shed.9. On 3 April 2006 the applicant participated in this auction and bought the above construction for UAH 26,000 (at the material time around EUR 4,200). The applicant submitted copies of the bills according to which he had paid the above amount in full.10. On 10 August 2006 the applicant sold the shed to a private person T. for UAH 50,000.11. On an unidentified date, a third person S. lodged an administrative claim against the bailiffs and the applicant seeking to declare the bailiff’s seizure and sale of the shed unlawful as in fact it belonged to him. In view of this claim, in October 2006 the sales contract between the applicant and T. was annulled by the parties and the applicant returned the money to T. On 23 November 2006 the Zalishchytskyy Local Court of Ternopil Region found that the shed belonged to S. and thus the bailiffs had unlawfully seized and sold it. There is no information as to whether there was an appeal against this decision.12. In parallel, criminal proceedings for abuse of office were initiated against bailiff D. in charge of the respective enforcement proceedings. On 16 March 2007 the applicant was given victim status in these proceedings. In the relevant resolution it was noted that the applicant sustained pecuniary damage and had not been reimbursed the money he had paid at the auction. The amount of the damage aggravated the charges against the bailiff.13. On 2 August 2007 the Zalishchytskyy Local Court convicted the bailiff as charged. In the text of the sentence the applicant is referred to as a witness. Apparently, no civil claim was submitted by the applicant in the course of these criminal proceedings. There is no information whether there was an appeal against this sentence.14. In May 2008 the applicant instituted civil proceedings against the Bailiffs’ Service and the local department of the State Treasury claiming compensation for pecuniary and non-pecuniary damage. The applicant referred to provisions on compensation of damage of the Civil Code of Ukraine, in particular Article 1174, and to Article 11 of the Law of Ukraine “On the State Bailiffs’ Service” according to which damage caused to an individual by actions or omissions of a state official, in particular, by a bailiff during enforcement proceedings, had to be compensated by the State (see paragraphs 19 and 21 below).15. On 1 December 2008 the Sadgirskyy District Court of Chernivtsi found for the applicant based on the above legislative provisions. It awarded the applicant UAH 60,262 (equivalent to around EUR 6,884) which comprised: i) cost of the shed (UAH 26,000); ii) bank commission (UAH 262); iii) lost income (UAH 24,000) and iv) non-pecuniary damages (UAH 10,000).16. Following the defendant’s appeal, on 12 March 2009 the Chernivtsi Regional Court of Appeal quashed this decision and rejected the applicant’s claims as unsubstantiated. The court held that since the applicant was not a party to the enforcement proceedings in the case against company U. he could not claim damages from the bailiffs under Article 11 of the Law of Ukraine “On the State Bailiffs’ Service” (see paragraph 21 below). The court of appeal did not examine the applicability of the Civil Code provisions, relied upon by the applicant and the local court. The court further noted that the applicant failed to demonstrate that the shed had been in fact seized from him without any compensation, or that the sales contract with company M. in charge of the auction had been dissolved.17. The applicant appealed in cassation stating that he no longer owned or used the shed as its seizure and sale were found unlawful by the court decision of 23 November 2006 (see paragraph 11 above) and it had been returned to S. He noted that the money he paid at the auction had not been reimbursed. He thus sustained damages. To support his claim the applicant reiterated again the Civil Code provisions.18. On 23 July 2009 the Supreme Court of Ukraine refused to open cassation proceedings finding the cassation appeal ill-founded.II. RELEVANT DOMESTIC LAW19. The relevant provisions of the Civil Code as to compensation of damage in force at the material time read as follows:Article 1166. General grounds of liability for damage to property“1. Pecuniary damage caused by unlawful decisions, actions or omission to personal non-pecuniary rights of an individual or a legal entity, as well as damage caused to property of an individual or a legal entity, shall be fully compensated by the person who caused it. ...”Article 1174. Compensation of damage caused by an official of a state authority, an authority of the Autonomous Republic of Crimea or a local self-government body“1. Damage caused to an individual or a legal entity by unlawful decisions, actions or omission of an official of a state authority, an authority of the Autonomous Republic of Crimea or a local self-government body in the exercise of its powers shall be compensated by the State, the Autonomous Republic of Crimea or a local self‑government body irrespective of the guilt of the official. ...”20. Under Article 28 of the Criminal Procedural Code of Ukraine, a person who has sustained damage as a result of a criminal offence can lodge a civil claim against an accused or persons liable for the actions of the accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. If no civil claim has been submitted within criminal proceedings or if it has been left without consideration, a person can lodge a claim in civil proceedings.21. The relevant provisions of the Law of Ukraine “On the State Bailiffs’ Service” in force at the material time provide as follows:Article 4 Bailiffs“...Bailiffs are representatives of State power and conduct enforcement of court decisions rendered in the name of Ukraine, and of decisions of other bodies (State officials) the enforcement of which is entrusted to the bailiffs’ service, in the manner established by law. ...”Article 11 Liability of bailiffs“Damage caused by a bailiff to individuals or legal persons during the enforcement of a judgment shall be compensated in the manner established by law at the expense of the State. ...”THE LAWI. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION22. The applicant complained under Article 1 of Protocol No. 1 to the Convention that he was deprived of his property due to the fault of the State agents and was not compensated for it. The above provision reads as follows:“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 or to secure the payment of taxes or other contributions or penalties.”A. Admissibility1. Arguments of the parties23. The Government alleged that the applicant had not exhausted domestic remedies in respect of the above complaint. They noted, in particular, that as he had not been a party to the enforcement proceedings in the framework of which the auction took place, Article 11 of the Law of Ukraine “On the State Bailiffs’ Service” (see paragraph 21 above) was clearly not applicable to him and thus his claims under this provision had no prospect of success. They suggested, on the other hand, that in line with Article 28 of the Criminal Procedural Code of Ukraine (see paragraph 20 above) the applicant should have filed a civil claim against bailiff D. either in the course of the criminal investigation and trial against him or after the end of these proceedings as a separate civil claim.24. The applicant disagreed. He stated that the Government erred in the interpretation of the domestic law. He noted that Article 11 of the Law of Ukraine “On the State Bailiffs’ Service” was worded in such a manner that it did not permit to clearly exclude its applicability to his situation. Therefore, it had not been obvious from the start that his efforts would be doomed to fail. He also pointed out that the damage was caused not by a private individual, but by a State agent and thus such damage should have in any case been compensated by the State.2. The Court’s assessment25. The Court points out that the purpose of the rule of exhaustion of domestic remedies under Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 V). At the same time, this rule must be applied with some degree of flexibility and without excessive formalism. The Court has already held on a number of occasions that this rule is neither absolute nor applied automatically; for the purposes of reviewing whether it has been observed, it is essential to take into account the circumstances of the individual case (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 IV, and Aksoy v. Turkey, 18 December 1996, §§ 53-54, Reports 1996-VI). In particular, the Court looks into whether the applicant did everything that could reasonably be expected in order to exhaust available domestic remedies (see Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004).26. The Court further notes that if domestic law provides for several parallel remedies in different fields of law, an applicant who has sought to obtain redress for an alleged breach of the Convention through one of these remedies is not necessarily required to use others which have essentially the same objective (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). The Court reiterates that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available, in theory and in practice, at the relevant time (see Akdivar, cited above, § 68). Once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (see Akdivar, cited above, § 68, and Kryvenkyy v. Ukraine, no. 43768/07, § 32, 16 February 2017).27. The Court notes that the applicant did use one of the remedies available to him but his claims were rejected on 12 March 2009 by the court which interpreted Article 11 of the Law of Ukraine “On the State Bailiffs’ Service” so that to exclude its applicability to the applicant’s situation (see paragraph 16 above). While it is for the domestic courts to interpret domestic law, the Court notes that this provision was worded in general terms (see paragraph 21 above) and the Government failed to provide any examples of domestic case-law confirming that there was a well-established practice of its interpretation. Thus, it cannot be said that the remedy chosen by the applicant was a priori futile (see and compare Aktoploikes Grammes Thiras v. Ukraine (dec.), no. 21200/04, 20 January 2015). All the more so, that to support his claims, the applicant advanced other legislative provisions, namely the provisions of the Civil Code regarding the compensation of damage (see paragraph 14 above), disregarded by the court of appeal.28. In the light of the above, the Court considers that the Government’s objections regarding the non-exhaustion of domestic remedies should be dismissed.29. The Court further notes that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits30. The Government did not provide any observations on the merits of the applicant’s complaints.31.

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