FIFTH SECTION  CASE OF ZUBKO AND OTHERS v. UKRAINE  (Applications nos. 3955/04, 5622/04, 8538/04 and 11418/04)  JUDGMENT   STRASBOURG 26 April 2006   FINAL  26/07/2006      This version was rectified on 3 October 2006 under Rule 81 of the Rules of the Court.In the case of Zubko and Others v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mr P. Lorenzen, President, Mrs S. Botoucharova, Mr K. Jungwiert, Mr V. Butkevych, Mrs M. Tsatsa-Nikolovska, Mr R. Maruste, Mr J. Borrego Borrego, judges,and Ms C. Westerdiek, Section Registrar,Having deliberated in private on 3 April 2006,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in four applications (nos. 3955/04, 5622/04, 8538/04 and 11418/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Mr Kostyantyn Antonovych Zubko, Ms Iryna Sergiyivna[1] Oleksiyenko, Mr Oleksandr Ivanovych Yankul and Mr Petro Mykolayovych Remez (“the applicants”), on 2 and 5 January, 12 February and 3 March 2004 respectively.2. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Zoryana Bortnovska, who was succeeded by Ms Valeriya Lutkovska, Deputy Minister of Justice.3. On 9 September 2004 the Court decided to communicate the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.THE FACTSI. THE CIRCUMSTANCES OF THE CASES4. The first applicant was born in 1954, the second applicant in 1971 and the fourth applicant in 1963. The first, second and fourth applicants are judges who live in Kirovograd. The third applicant, a retired judge, was born in 1942 and currently lives in Gayvoron in the Kirovograd region.A. The first applicant (Mr Zubko)5. In November 2002 the first applicant lodged complaints with the Pechersky District Court of Kyiv (“the Pechersky District Court”) against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.6. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant 5,807.26 Ukrainian hryvnas[2] (UAH) in compensation.7. On 9 July 2003 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld this judgment and it became final.8. On 11 August 2003 the Pechersky District Bailiffs' Service (“the PBS”) decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the execution writs with the State Treasury.9. On 22 September 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds, and stated that responsibility for enforcement lay with the State Judicial Administration.10. On 6 November 2004 the applicant received the sum due to him under the judgment of 16 December 2002 (payment order no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.)B. The second applicant (Ms Oleksiyenko)11. In November 2002 the applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.12. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 10,291.61[3] in compensation.13. On 9 July 2003 the Court of Appeal upheld this judgment and it became final.14. On 11 August 2003 the PBS decided not to initiate enforcement proceedings in the case and informed the applicant that she should lodge the execution writs with the State Treasury.15. On 5 February 2004 the State Treasury returned the writs of execution in respect of the judgment of 16 December 2002, which remained unenforced owing to a lack of funds in the State budget.16. On 15 November 2004 the applicant received the sum due to her (payment order no. 173). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.)C. The third applicant (Mr Yankul)17. On 22 March 2000 the third applicant retired, following a decision of the Verkhovna Rada to dismiss him.18. In November 2001 the applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.19. On 14 January 2002 the Pechersky District Court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 4,822[4] in compensation.20. On 8 May 2002 the Court of Appeal upheld this judgment and it became final.21. On 21 May 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds.22. On 8 September 2003 the Kyiv City Department of Justice informed the applicant that the judgment could not be enforced owing to a lack of funds in the State budget for such expenditure.23. On 8 September 2003 the Deputy Head of the State Judicial Administration informed the applicant that the judicial administration was not liable for payment of debts that had been incurred before it had been established.24. On 22 December 2003 the PBS returned the writ of execution to the applicant on the ground that there were no funds in the budget of the State Treasury for the enforcement of such judgments.25. On 6 November 2004 the applicant received the sum awarded to him by the judgment of 14 January 2002 (payment order no. 163).26. On 30 November 2004 the applicant received the sum due to him in the form of a payment order (no. 3698) to his bank account). (The enforcement proceedings lasted from May 2002 to November 2004, that is, for about two years and six months.)D. The fourth applicant (Mr Remez)27. In November 2002 the fourth applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.28. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 5,978.34[5] in compensation.29. On 9 July 2003 the Court of Appeal upheld this judgment and it became final.30. On 11 August 2003 the PBS decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the writs with the State Treasury.31. In October 2003 the applicant lodged the writs of execution with the State Treasury. On 10 November 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds, and stated that responsibility for enforcement lay with the State Judicial Administration.32. On 6 November 2004 the applicant received the sum due to him (payment order no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.)II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICEA. The Constitution of Ukraine33. The relevant provisions of the Constitution of Ukraine read as follows:Article 95“All expenditure by the State for social purposes, and the amounts and aims thereof, shall be determined by the State Budget Act.”Article 43“Everyone shall have the right to work, including the possibility to earn his or her living by labour which he or she freely chooses or to which he or she freely agrees.... The right to timely payment for work shall be protected by law.”Article 126“The independence and immunity of judges shall be guaranteed by the Constitution and the laws of Ukraine.... Influencing judges in any manner shall be prohibited.”Article 127“Justice shall be administered by professional judges and, in cases determined by law, by lay assessors and jurors.Professional judges shall not belong to political parties or trade unions, take part in any political activity, hold a representative mandate, occupy any other paid position or perform other remunerated work except in the academic, teaching and creative spheres. ...”Article 129“In the administration of justice, judges shall be independent and subject only to the law.”Article 130“The State shall ensure the funding and proper conditions for the operation of the courts and the activity of judges. Expenditure for the maintenance of the courts shall be allocated separately in the State budget of Ukraine. ...”B. The Judiciary Act of 1 June 200234. Section 123 of the Judiciary Act provides that judges' salaries and social-security benefits shall be such as to ensure their financial independence and shall be determined in accordance with the Status of Judges Act. The amount of a judicial salary cannot be reduced.C. The Budgetary Code of 21 June 200135. The relevant provisions of the Budgetary Code read as follows (Law no. 2542):Article 7“... Budgetary funds shall be spent for the purposes determined by budgetary allocations only...”Article 23“...Budget commitments can be undertaken and payments from the State budget made only in so far as budgetary allocations exist for these purposes.”D. The 2003 State Budget Act (Law no. 380-IV of 26 December 2002)36. The State Budget Act provides that the writing-off of funds from the State budget pursuant to a court judgment delivered in favour of the employees of an organisation in receipt of budgetary funds, who are entitled to certain benefits, shall be carried out from the single treasury account of the State Treasury at the expense and within the limits of the budget allocations fixed for financing that organisation.E. Law no. 1801-IV of 17 June 2004 amending the 2004 State Budget Act37. The State budget provided UAH 1,067,200[6] for the enforcement of judgments awarding judicial salaries and benefit arrears.F. Law amending the Enforcement Proceedings Act (Law no. 606‑XIV of 21 April 1999)38. Section 20-1 of the Law provides that the bailiffs' departments of the Ministry of Justice shall be responsible for the enforcement of judgments concerning the debts of the executive branch of Government.G. Regulations on the State Judicial Administration (Presidential Decree No. 182 of 3 March 2003)39. The Decree provides that the State Judicial Administration shall be responsible for organising the financial planning and accounting of the courts and for preparing an estimate of the courts' budgetary needs.H. Regulations on the State Treasury (as approved by Resolution no. 590 of the Cabinet of Ministers of 31 July 1995)40. In accordance with section 4 of the Regulations, the State Treasury is responsible for the implementation of the State budget and for monitoring its expenditure.I. Recommendation of the Committee of Ministers R (94) 12 on the Independence, Efficiency and Role of Judges (adopted by the Committee of Ministers on 13 October 1994 at the 518th meeting of the Ministers' Deputies), and the Explanatory Memorandum thereto41. The relevant extracts from the Recommendation read as follows:“Principle III - Proper working conditions1. Proper conditions should be provided to enable judges to work efficiently and, in particular, by:... b.  ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities; ...”42. The relevant extracts from the Explanatory Memorandum read as follows:“29. Status and remuneration are important factors determining appropriate working conditions (see paragraph 1.b). The status accorded to judges should be commensurate with the dignity of their profession and their remuneration should represent sufficient compensation for their burden of responsibilities. These factors are essential to the independence of judges, especially the recognition of the importance of their role as judges, expressed in terms of due respect and adequate financial remuneration.30. Paragraph 1.b is closely bound up with the reference in Principle I to all decisions concerning the professional life of judges, which obviously includes their status and their remuneration.”J. European Charter on the Statute for Judges (Department of Legal Affairs of the Council of Europe Document (98)23)43. The relevant extracts from Chapter 6 of the European Charter on the Statute for Judges, “Remuneration and Social Welfare”, read as follows:“6.1. Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality.”THE LAWI. JOINDER OF THE APPLICATIONS44. The Court considers that the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court, given their common factual and legal background.II. ADMISSIBILITYA. The applicants' complaints45. The first, second and fourth applicants complained about the lengthy non-enforcement of the judgments of the Pechersky District Court of Kyiv of 16 December 2002. The third applicant complained about the lengthy non-enforcement of the judgment of the Pechersky District Court of Kyiv of 14 January 2002. In their submissions they relied on Article 6 § 1 of the Convention, which reads as follows:“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”46. The applicants further complained that the State had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1, which provides:“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.”47. The second applicant complained that she had had no effective remedy in respect of her complaints under Article 6 § 1 of the Convention concerning the length of non-enforcement of the judgment given in her favour, in breach of Article 13, 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.”B. The Government's preliminary objections in respect of all the applications as to the exhaustion of domestic remedies and admissibility ratione personae48. The Government alleged that the applicants had failed to exhaust domestic remedies, as they had not lodged applications with the domestic courts challenging the inactivity of the State Treasury and the State Judicial Administration or claiming compensation for improper enforcement proceedings or for the devaluation of the amounts awarded. They further alleged that, as the judgments had been enforced, the applicants were no longer victims of the violation claimed.49. The applicants contested these arguments.50. The Court notes that it has considered and rejected the Government's similar objections on a number of occasions (see Romashov v. Ukraine, no. 67534/01, §§ 27 and 32, 27 July 2004).

Outcome for Article P1-1: violation