FIFTH SECTION     CASE OF Yuriy NIKOLAYEVICH IVANOV v. UKRAINE (Application no. 40450/04)         JUDGMENT   STRASBOURG 15 October 2009 FINAL 15/01/2010 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 Yuriy Nikolayevich Ivanov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Karel Jungwiert, Rait Maruste, Mark Villiger, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges, Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 22 September 2009,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no.  40450/04) 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 Russian national, Mr Yuriy Nikolayevich Ivanov (“the applicant”), on 13 September 2004.2. The applicant was represented by Mr I. Pogasiy, a lawyer practising in Kirovograd. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.3. On 24 October 2006 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).4. In accordance with Article 36 § 1 of the Convention, the Russian Government were invited to exercise their right to intervene in the proceedings, but they declined to do so.5. On 25 November 2008 the Chamber decided to give priority treatment to the above application in accordance with Rule 41 of the Rules of Court and to inform the parties that it was considering the suitability of applying a pilot-judgment procedure in the case (see, for a recent authority, Burdov v. Russia (no. 2), no. 33509/04, §§129-130, 15 January 2009). The Chamber also decided to invite the parties, under Rule 54 § 2 (c), to submit further observations on the case.6. The parties filed further written observations. The applicant requested the Chamber to hold a hearing and to relinquish jurisdiction in favour of the Grand Chamber under Rule 72. The Government objected to a hearing and to relinquishment of the Chamber’s jurisdiction. The Chamber decided, pursuant to Rule 54 § 3 and Rule 72 §§ 1 and 2, that no hearing was required and that it was not necessary to refer this case to the Grand Chamber.THE FACTSI. THE CIRCUMSTANCES OF THE CASE7. The applicant was born in 1957 and lives in Moscow.A. Proceedings against the military unit8. In October 2000 the applicant retired from the Ukrainian Army. He was entitled to a lump-sum retirement payment and compensation for his uniform, but the payments were not made to him on his retirement.9. In July 2001 the applicant instituted proceedings in the Cherkassy Regional Military Court against Military Unit A-1575, seeking recovery of the debt. On 22 August 2001 the court allowed his claim in full and ordered the military unit to pay the applicant 1,449.36 Ukrainian hryvnias (UAH)[1] in compensation for his uniform, UAH 2,512.50[2] in retirement payment arrears, and UAH 51[3] by way of reimbursement for the court fees. On 22 September 2001 the court’s judgment became final and enforceable.10. On an unspecified date the applicant received UAH 2,512.50[4]. The remainder of the award remained unpaid.11. The enforcement proceedings concerning the judgment of 22 August 2001 commenced on 24 January 2002. In the course of those proceedings the bailiffs informed the applicant that they had frozen the debtor’s bank accounts, though no funds had been found in those accounts.12. In a letter of 12 November 2002 the Ministry of Defence informed the applicant that the legislative provisions entitling him to compensation for his uniform were suspended and that there were no budgetary allocations for such payments.13. On 5 May 2003 the debtor military unit was disbanded and Military Unit A-0680 became its successor.14. In a letter of 6 April 2004 the bailiffs informed the applicant that the latter military unit had no money to pay the applicant in compliance with the judgment of 22 August 2001. They also mentioned that the forced sale of assets belonging to military units was prohibited by the law.15. The judgment of 22 August 2001 remains partially unenforced.B. Proceedings against the bailiffs16. In 2002 the applicant lodged with the Leninskyy District Court of Kirovograd (“the Leninskyy Court”) a complaint against the bailiffs, alleging that the judgment of 22 August 2001 had not been enforced because of fault on their part. On 3 December 2002 the court found that the bailiffs had not taken the necessary measures to enforce the judgment in the applicant’s favour and ordered them to identify and freeze the bank accounts of the debtor military unit in order to seize the money available in those accounts.17. According to the applicant, the bailiffs did not comply with the court’s ruling of 3 December 2002. On 20 May 2003 he lodged a claim with the same court against the bailiffs, seeking compensation for pecuniary and non-pecuniary damage.18. On 29 July 2003 the applicant’s claim was partly allowed. The Leninskyy Court found that the judgment of 22 August 2001 remained unenforced through the fault of the bailiffs and awarded the applicant UAH 1,500.36[5] in compensation for pecuniary damage and UAH 1,000[6] for non-pecuniary damage. On 29 August 2003 the judgment of 29 July 2003 became final and enforceable. On 25 February 2004 an appeal by the applicant against the judgment of 29 July 2003 was dismissed as having been lodged out of time.19. On 3 March 2004 the applicant submitted a written request to the Leninskyy Court to issue a writ of execution in respect of the judgment of 29 July 2003. The applicant did not receive the writ or a reply to his request. The judgment of 29 July 2003 remains unenforced.20. Throughout the proceedings against the bailiffs, the applicant was assisted and represented by a lawyer.C. The application to the Court21. According to the applicant’s lawyer, in order to substantiate the application in the present case he had tried to obtain some unspecified documents from the applicant’s case file kept by the Leninskyy Court. On 13 July 2004 he requested that court to send him all the documents from the case file, without specifying that he needed them for the applicant’s case before the Strasbourg Court.22. In a letter of 29 July 2004 the Leninskyy Court informed the lawyer that he had failed to provide a form of authority and thus could not obtain the documents requested.23. The applicant’s lawyer did not resubmit his request with an authority form.II. RELEVANT DOMESTIC LAWA. Constitution of Ukraine of 26 June 199624. Article 124 of the Constitution provides as follows:“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”B. Criminal Code of 200125. Article 382 of the Code provides:“1. Wilful failure of an official to comply with a sentence, judgment, ruling or resolution of a court which has entered into force, or hindrance of its enforcement,shall be punishable by a fine [in the amount] of five hundred to one thousand times the statutory non-taxable monthly income, or by deprivation of liberty for a term of up to three years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.2. The same actions committed by an official occupying a responsible or especially responsible position, or by a person previously convicted of the crime envisaged by this Article, or [the same actions] causing substantial damage to the legally protected rights and freedoms of citizens, State or public interests or the interests of legal entities,shall be punishable by restraint of liberty for a term of up to five years, or by deprivation of liberty for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.3. Wilful failure of an official to comply with a judgment of the European Court of Human Rightsshall be punishable by deprivation of liberty for a term of three to eight years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.”C. Enforcement Proceedings Act of 21 April 199926. The Act determines the procedure for forcible execution of decisions of courts and of other competent authorities and officials (“judgments”).27. Under section 2 of the Act, the enforcement of judgments is entrusted to the State Bailiffs’ Service, which forms part of the Ministry of Justice. Other entities and officials may also carry out enforcement in accordance with the law. In particular, pursuant to section 9, the bodies of the State Treasury are responsible for the enforcement of judgments concerning recovery of money from the State or local budgets or entities financed from the State budget.28. The Act confers a wide range of powers on bailiffs in enforcement proceedings. In particular, they are entitled to seek and obtain, from any person concerned, information and documents that are necessary for the enforcement of decisions, to enter and inspect premises belonging or occupied by debtors, to seize and sell debtors’ property, to freeze debtors’ bank accounts, and to impose fines on citizens and officials in cases envisaged by the law (sections 4-5 of the Act). The bailiffs’ orders concerning the enforcement of judgments are binding on all entities, organisations, officials and common citizens in the territory of Ukraine. Pursuant to sections 6 and 88 of the Act, the bailiffs are entitled to punish persons failing to comply with their orders by a fine amounting to ten to thirty times the statutory non-taxable monthly income. If the actions of the offenders fall within the ambit of the criminal law, the bailiffs are to request their prosecution.29. Section 3 of the Act contains a list of documents on the basis of which bailiffs may proceed with forcible execution (“the enforcement documents”). It includes, inter alia, writs of execution issued by courts, rulings and resolutions of courts in civil, commercial, administrative and criminal cases, judicial orders, and judgments of the European Court of Human Rights. In order to initiate enforcement proceedings, the person in whose favour the judgment was delivered (“the creditor”) or a prosecutor who represented a citizen or the State in the court proceedings must submit to the bailiffs one of the documents specified in section 3 together with a request for its enforcement (section 18). The bailiffs have three days to determine whether the request was made in compliance with the law and, if so, to start the enforcement proceedings, which must normally be completed within six months (sections 24-25). Section 34 of the Act obliges the bailiffs to suspend the enforcement proceedings in specific situations. Such suspension is compulsory if, for instance, a commercial court has started bankruptcy proceedings against the debtor and imposed a ban on payments in respect of creditors’ claims, or if the debtor is an enterprise included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises.30. Under section 37, enforcement proceedings are to be discontinued in cases where, for example, the judgment has actually been enforced in full, the time allowed for a particular type of debt collection has expired, or the enforcement document has been transferred to the debtor’s liquidator following official recognition of the debtor’s insolvency. The bailiffs must return the enforcement document to the creditor if, for instance, the debtor does not have property which could be seized with a view to enforcing the judgment and the measures adopted by the bailiffs in order to discover such property have proved to be unsuccessful.31. Parties to enforcement proceedings or persons involved in them are entitled to challenge the bailiffs’ actions or inactivity before their superiors or courts and to claim damages (sections 7, 85 and 86).32. By the transitional provisions of the Act, the application of sections 4 and 5 was suspended in respect of enterprises included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises.D. State Bailiffs’ Service Act of 24 March 199833. Section 11 of this Act provides that damage caused by bailiffs in the course of execution of a judgment is to be compensated at the expense of the State in accordance with the procedure established by law.E. Act on Economic Activities in the Armed Forces of Ukraine of 21 September 199934. Under section 5 of this Act, a military unit, as an entity taking part in economic activities, is legally responsible for its failure to fulfil its contractual obligations and for damage caused to the environment and to the rights and interests of natural and legal persons and the State. The money allocated under the relevant provisions of its budget, excluding the money allocated in respect of protected items of the budget, may be used to fulfil the unit’s obligations. If the amount of money available is insufficient, the Ministry of Defence becomes responsible for the unit’s debts. No property allocated to the unit may be used for settlement of its debts.III. Relevant COUNCIL of europe DOCUMENTSA. Recommendation Rec(2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies, 12 May 200435. At its 114th session on 12 May 2004 the Committee of Ministers, having considered the measures needed to guarantee the long-term effectiveness of the control system instituted by the Convention, recommended, inter alia, that member States“review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court...”36. In the Appendix to the Recommendation of 12 May 2004, the Committee of Ministers noted:“... The Court is confronted with an ever-increasing number of applications. This situation jeopardises the long-term effectiveness of the system and therefore calls for a strong reaction from contracting parties. It is precisely within this context that the availability of effective domestic remedies becomes particularly important. The improvement of available domestic remedies will most probably have quantitative and qualitative effects on the workload of the Court:  on the one hand, the volume of applications to be examined ought to be reduced: fewer applicants would feel compelled to bring the case before the Court if the examination of their complaints before the domestic authorities was sufficiently thorough;  on the other hand, the examination of applications by the Court will be facilitated if an examination of the merits of cases has been carried out beforehand by a domestic authority, thanks to the improvement of domestic remedies...13. When a judgment which points to structural or general deficiencies in national law or practice (‘pilot case’) has been delivered and a large number of applications to the Court concerning the same problem (‘repetitive cases’) are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system.14. The introduction of such a domestic remedy could also significantly reduce the Court’s workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution...16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation...18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases...”B. Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem, 12 May 200437. At the same session of 12 May 2004 the Committee of Ministers adopted a resolution, by which it invited the Court to:“ ... I.  as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments;II.  to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court.”C. Interim Resolution of the Committee of Ministers on the execution of the judgments of the European Court of Human Rights in 232 cases against Ukraine relative to the failure or serious delay in abiding by final domestic judicial decisions delivered against the state and its entities as well as the absence of an effective remedy, 6 March 200838. On 6 March 2008 the Committee of Ministers considered, pursuant to Article 46 § 2 of the Convention, the measures adopted by the Government of Ukraine with a view to complying with the Court’s judgments concerning the issue of the prolonged non-enforcement of final domestic decisions. The Committee adopted an interim resolution (CM/ResDH(2008)1), the relevant provisions of which read as follows:“The Committee of Ministers...expresses particular concern that notwithstanding a number of legislative and other important initiatives, which have been repeatedly brought to the attention of the Committee of Ministers, little progress has been made so far in resolving the structural problem of non-execution of domestic judicial decisions;STRONGLY ENCOURAGES the Ukrainian authorities to enhance their political commitment in order to achieve tangible results and to make it a high political priority to abide by their obligations under the Convention and by the Court’s judgments, to ensure full and timely execution of the domestic courts’ decision;CALLS UPON the Ukrainian authorities to set up an effective national policy, coordinated at the highest governmental level, with a view to effectively implementing the package of measures announced and other measures which may be necessary to tackle the problem at issue;URGES the Ukrainian authorities to adopt as a matter of priority the draft laws that were announced before the Committee of Ministers, in particular the law On Amendments to Certain Legal Acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time);ENCOURAGES the authorities, pending the adoption of the draft laws announced, to consider the adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular:-  to consider the adoption of measures similar to those taken in the education sector in other sectors which raise similar problems;-  to take measures to ensure effective management and control over state entities and enterprises to avoid debts arising to employees;-  to ensure in practice the effective liability of civil servants for non-enforcement;-  to award compensation for delays in enforcement of domestic judicial decisions directly on the basis of the Convention’s provisions and the Court’s case-law as provided by the Law on enforcement of judgments and the application of the case-law of the European Court;INVITES the Ukrainian authorities to consider, in addition to the measures announced, appropriate solutions in the following areas:-  to improve budgetary planning, particularly by ensuring compatibility between the budgetary laws and the state’s payment obligations;-  to ensure the existence of specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations; and-  to ensure the existence of an effective procedure and funds for the execution of domestic courts’ judgements delivered against the state...”D. Decision of the Committee of Ministers on 300 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments, 8 June 200939. From 2 to 5 June 2009 the Committee of Ministers resumed consideration under Article 46 § 2 of the Convention of the group of the Court’s judgments against Ukraine concerning the failure to enforce, or delays in the enforcement of, domestic decisions. The following decision (CM/Del/Dec(2009)1059) was adopted by the Committee on that subject:“The Deputies,1.  recalled that, as acknowledged by the Committee of Ministers in its Interim Resolution CM/ResDH(2008)1, the non-enforcement of domestic judicial decisions constitutes a structural problem in Ukraine;2.  noted that there are still a number of cases in which domestic court decisions remain unenforced despite the judgments of the European Court;3.  noted with concern that, notwithstanding the efforts made by the Ukrainian authorities in adopting interim measures, the structural problem underlying the violations has not been solved;4.  observed that failure to adopt all necessary measures, including previously announced legislative measures, has resulted in a steady increase in the number of new applications lodged with the European Court concerning non-enforcement of domestic judicial decisions;5.  noted with concern in this context that priority has not been given to setting up a domestic remedy in case of non-enforcement or delayed enforcement of domestic judicial decisions, despite the Committee’s repeated calls to this effect;6.  called upon the Ukrainian authorities once again to take rapidly the necessary action to ensure Ukraine’s compliance with its obligations under the Convention, and in particular to reconsider the various proposal for reforms made during the examination of these cases (see, in particular, CM/Inf/DH(2007)30 revised and CM/Inf/DH(2007)33);7.  decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), possibly in light of a draft interim resolution taking stock of the general and individual measures adopted by then and other outstanding issues if any.”THE LAWI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 140. The applicant complained about the non-enforcement of the judgments of the Cherkassy Regional Military Court of 22 August 2001 and of the Leninskyy District Court of 29 July 2003, and of the ruling of the Leninskyy District Court of 3 December 2002. He invoked in this respect Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which provide, in so far as relevant:Article 6 § 1“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal...”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...”A. The parties’ submissions41. The Government submitted that Article 6 § 1 of the Convention was inapplicable ratione materiae to the proceedings concerning compensation for the uniform which the applicant had been obliged to wear in the exercise of his public functions. In their view, the award was of a public-law nature and was not decisive for the applicant’s private-law rights or obligations. Relying on the same grounds, they suggested that there had been no interference with the applicant’s right to peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 in respect of the award of 22 August 2001.42. The Government further argued that that the applicant had not exhausted domestic remedies and had not acquired victim status in respect of his complaints relating to the non-enforcement of the judgment of 29 July 2003, as he had failed to lodge with the Bailiffs’ Service a writ of execution for the initiation of enforcement proceedings in respect of that judgment. They submitted that the State was not responsible for its enforcement.43. The Government therefore invited the Court to declare the application inadmissible.44. The applicant disagreed. In particular he contended that Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 were applicable in his case, as he had discontinued his service in the Army and the award of 22 August 2001 was of a private nature. He further argued that he could not institute enforcement proceedings in respect of the judgment of 29 July 2003 because of the authorities’ failure to provide him with a writ of execution for that judgment.B. The Court’s assessment1. Admissibility45. The Court observes that it has already held in similar cases against Ukraine that Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 are applicable to proceedings concerning claims for compensation for a military officer’s uniform as such proceedings concern the right to compensation and not, as the Government put it, title to the uniform; that at the material time the applicants in those cases had already retired from public service and had access to a court under national law, and that a judgment debt constitutes a possession for the purposes of Article 1 of Protocol No. 1 (see, for instance, Voytenko v. Ukraine, no. 18966/02, §§ 51‑54, 29 June 2004, and Peretyatko v. Ukraine, no. 37758/05, § 16, 27 November 2008). The Court finds no reason to reach a different conclusion in the present case.46. As regards the question of the admissibility of the complaints concerning the non-enforcement of the judgment of 29 July 2003, the Court reiterates that a person who has obtained a final judgment against the State cannot be expected to bring separate enforcement proceedings (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004, and Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007). In such cases, the defendant State authority which was duly notified of the judgment must take all necessary measures to comply with it or to transmit it to another competent authority for execution (see Burdov (no. 2), cited above, § 68).47. Furthermore, the Court notes that the enforcement of the judgment of 29 July 2003 depended on the availability of sufficient budgetary allocations for such purposes and the bailiffs had no power to compel the State to amend its budget laws (see, for instance, Voytenko, cited above, § 30; Glova and Bregin v. Ukraine, nos. 4292/04 and 4347/04, § 14, 28 February 2006; and Vasylyev v. Ukraine, no. 10232/02, § 29, 13 July 2006).48. Therefore, the Court finds that the applicant cannot be criticised for not lodging with the Bailiffs’ Service an application, or a writ of execution, for the initiation of enforcement proceedings.49. On the same grounds the Court finds that this state of affairs engaged the responsibility of the State for the enforcement of the judgment of 29 July 2003 and that the applicant may claim to be the victim of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in relation to its non-enforcement.50. In view of the above considerations, the Court dismisses the Government’s objections to the admissibility of this part of the application and concludes that it raises issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring it inadmissible.

Outcome for Article 13: violation