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FIFTH
SECTION
CASE OF CHUYKINA v. UKRAINE
(Application
no. 28924/04)
JUDGMENT
STRASBOURG
13 January
2011
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 Chuykina 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,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna Yudkivska, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28924/04) 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 Ukrainian national, Ms Lyudmila Dmitriyevna
Chuykina (“the applicant”), on 10 July 2004.
- The
applicant, who had been granted legal aid, was represented by Mr D.
Kurdelchuk, a lawyer practising in Kyiv. The Ukrainian Government
(“the Government”) were represented by their Agent, Mr Y.
Zaytsev, of the Ministry of Justice.
- On
12 May 2009 the President of the Fifth Section decided to give notice
of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in the town of
Kamenka-Dniprovska, Ukraine.
A. Proceedings against G. company
- On
5 February 1998 the applicant instituted proceedings for compensation
in the Energodar Local Court (“the Energodar Court”)
against a private company, G., for
selling her a defective television set.
- On
18 June 1998 the case was transferred to the Kamenka-Dniprovskiy
Local Court (“the Kamenka-Dniprovskiy Court”).
- On
28 July 1998 the latter court found against the applicant. On
8 September 1998 the Zaporizhzhya Regional Court (“the
Zaporizhzya Court”) quashed that judgment and remitted the case
to the first-instance court for fresh consideration.
- On
19 October 1998 the Kamenka-Dniprovskiy Court found for the
applicant. On 24 November 1998 the Zaporizhzhya Court quashed that
judgment and remitted the case to the Kamenka-Dniprovskiy Court for
fresh consideration.
- On
19 May 1999, following a decision by the President of the
Zaporizhzhya Court, the case was transferred to the Vasylivskiy Local
Court (“the Vasylivskiy Court”).
- On
6 September 1999 the case was transferred to the Energodar Court,
which, in a hearing on 26 January 2000, left the applicant’s
claim unexamined. The applicant appealed.
- On
14 March 2000 the Zaporizhzhya Court quashed the decision of 26
January 2000 and remitted the case to the Kamenka-Dniprovsky Court
for fresh consideration.
- On
13 November 2000 the case was transferred to the Vasylivskiy Court,
which on 1 February 2001 left the applicant’s claim unexamined.
On 6 March 2001 the Zaporizhzhya Court quashed that decision and
remitted the case for fresh consideration to the same court.
- On
13 December 2001 the Vasylivskiy Court left the applicant’s
claim unexamined. On 6 June 2002 the Zaporizhzhya Court upheld that
decision. On 13 March 2003 the Supreme Court quashed the decisions of
the lower courts and remitted the case for fresh consideration to the
first-instance court.
- On
12 February 2004 the Energodar Court allowed the applicant’s
claim in part, awarding her 17,614 Ukrainian hryvnias (UAH) in
compensation for pecuniary and non-pecuniary damage.
- On
28 April 2004 the Zaporizhzhya Court upheld that judgment with minor
amendments.
- The
applicant did not appeal in cassation to the Supreme Court.
- In
2004 insolvency proceedings were initiated against the defendant
company.
- The
judgment of 12 February 2004 remains unenforced.
B. Proceedings against the bailiffs
- On
26 May 2004 the Bailiffs’ Department of the Energodar Town
Department of Justice (Відділ
Державної
виконавчої
служби міського
управління
юстиції в Запорізькій
області – “the
Bailiffs’ Department”) initiated enforcement proceedings
in respect of the judgment of 12 February 2004.
- The
Bailiffs’ Department did not enforce the judgment and the
applicant complained to the Energodar Court, which, by judgments of
17 January, 23 June and 25 October 2005 and 27 April 2006, found
the Bailiffs’ Department liable for the failure to enforce the
judgment of 12 February 2004.
- Following
the reorganisation of the State mechanism
for
enforcing
judgments, the State
Bailiffs’ Departments were closed down without legal
successors. The State Bailiffs’ Services were created as the
new enforcement bodies (see Relevant Domestic Law below).
- In
July 2006 the applicant instituted proceedings against the newly
created Energodar Bailiffs’ Service (Державна
виконавча
служба у м. Енергодар
– “the Bailiffs’ Service”) in the
Energodar Court, seeking compensation for the damage caused as a
result of the failure to enforce the judgment. On 16 October 2006 the
court ordered that the Bailiffs’ Department, which no longer
performed any functions but remained in the State register of legal
entities, should be joined as a co-defendant in the case.
- On
10 November 2006 the Energodar Court granted the applicant’s
claims in part and awarded her UAH 3,660 in compensation for
non-pecuniary damage caused by the non-enforcement of the judgment,
to be paid by the Bailiffs’ Department. It
dismissed all her claims against the newly created Bailiffs’
Service as it had not been found liable for the non-enforcement of
the judgment in the applicant’s favour.
- On
16 January 2007, the Bailiffs’ Department was finally
liquidated and removed from the State register of legal entities.
- On
1 March 2007 the Zaporizhzhya Court examined the applicant’s
appeal and found that the first-instance court had made a correct
assessment of the legal relationship between the parties. It further
quashed the judgment in the part awarding the applicant UAH 3,660
against the Bailiffs’ Department and nullified the proceedings
in this part on the ground that the Bailiffs’ Department had
been liquidated without a legal successor.
- On
25 June 2007 the Supreme Court rejected a request by the applicant
for leave to appeal in cassation.
II. RELEVANT DOMESTIC LAW
A. Constitution
27. The
relevant provision of the Constitution provides as follows:
Article 55
“...Everyone is guaranteed the right to challenge
in court the decisions, actions or omissions of bodies of State
power, bodies of local self-government, officials and officers...”
B. Code of Civil Procedure
- The
relevant provisions of the Code provide as follows
Article 205. Grounds for nullification of the
proceedings
“1. A court shall, by its ruling,
nullify the proceedings, if:
...
7) a legal person that was a party to the proceedings
has been liquidated.”
C. Restructuring of the State Bailiffs’ Service
- In
2005 the Bailiffs’ Service was restructured under Decree No.
320 of the Cabinet of Ministers of 23 April 2005 and the Act of
Parliament of 23 June 2005 “on introducing amendments to
the State Bailiffs’ Service Act and the Enforcement Proceedings
Act”. The above government decree specified that new bailiffs’
services were to be created in place of the bailiffs’
departments of the Ministry of Justice.
- In
implementing this restructuring, the Ministry of Justice issued Order
No 1482 of 19 August 2005, and this was followed by orders of the
regional departments of justice. The Zaporizhzhya Regional Department
of Justice issued such an order on 25 August 2005 (Order No. 521/15).
Under the orders the bailiffs’ departments were liquidated
without legal successors and the new bailiffs’ services were
created in their stead as new legal persons.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained under Articles 1 and 6 of the
Convention about the length and fairness of the proceedings against
company G., and about non-enforcement of the judgment given in the
above-mentioned proceedings. She further complained of the domestic
courts’ failure to give due consideration to her compensation
claim against the bailiffs. The Court, which is master of the
characterisation to be given in law to the facts of the case, decides
to examine these complaints under Article 6 § 1 of the
Convention, which is the relevant provision and which provides, in so
far as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
1. Fairness of the proceedings against the company
- The
applicant complained that the proceedings had been unfair.
- The
Court notes that the applicant did not appeal against the judgment of
12 February 2004 or the decision of 28 April 2004 to the Supreme
Court of Ukraine under the ordinary cassation procedure. It follows
that this complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
2. Length of the proceedings against the company
- The
applicant further complained that the proceedings were unreasonably
long. In particular, she submitted that delays had been caused by the
repeated remittals of her case.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
3. Non-enforcement of the judgment of 12 February 2004
and proceedings against the bailiffs
- The
applicant also complained that the judgment of 12 February 2004
remained unenforced, that the proceedings instituted against the
bailiffs had been unfair, and that she had been deprived of the
opportunity to seek damages from the bailiffs in the courts.
- The
Court notes that these complaints 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.
They must therefore be declared admissible.
B. Merits
1. Length of the proceedings against company G.
- The
period to be taken into consideration began on 5 February 1998 when
the applicant lodged her civil claim and ended on 24 April 2004 when
the court of appeal adopted a decision in the case which was not
appealed against and so became final. It thus lasted six years, two
months and nineteen days at three levels of jurisdiction.
- The
applicant maintained that she had not contributed significantly to
the length of the proceedings, whereas the State authorities had
remitted the case several times for fresh consideration. She also
pointed out that her civil dispute was not particularly complex and
its outcome was important to her.
- The
Government stated that the hearings in the applicant’s case had
been scheduled regularly and there had been no delays attributable to
the State.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- In
the instant case it does not appear that the issue under
consideration was particularly complex or that any long delays were
attributable to the applicant. Moreover, the Court notes that the
case was remitted for fresh consideration on several occasions.
Although not in a position to analyse the quality of the adjudication
by the domestic courts, it considers that, since the remittal of
cases for re-examination is usually ordered as a result of errors
committed by lower courts, the repetition of such orders within one
set of proceedings discloses a serious deficiency in the judicial
system (see Wierciszewska v. Poland, no. 41431/98, §
46, 25 November 2003).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2. Non-enforcement of the judgment of 12 February 2004
and the fairness of the proceedings against the bailiffs
- The
applicant considered that the bailiffs were responsible for the
non-enforcement of the judgment of 12 February 2004. However, she
could not obtain compensation on account of the nullification of the
proceedings against the bailiffs. Therefore, she considered that the
proceedings instituted against the bailiffs had been unfair and that
she had been deprived of the opportunity to seek damages from the
bailiffs in the courts. She maintained that the State authorities
could not rely on the lack of legal successors to its own
institutions as an excuse for not honouring their obligations.
- The
Government maintained that the length of the enforcement proceedings
in the applicant’s case was objectively justified by the
liquidation proceedings against the company. As to the proceedings
against the bailiffs, they submitted that the first-instance court
had rightly found the Bailiffs’ Department liable for of the
failure to enforce the judgment of 12 February 2004 in favour of
the applicant, while the appellate court had quashed the awarded
amount because the defendant had ceased to exist since there was no
legal succession. They underlined that the domestic courts had
decided the case in full compliance with the domestic legislation,
and expressed the view that it was not the task of the Court to act
as a court of appeal from the decisions of domestic courts.
- The
Court notes that the judgment of 12 February 2004 was given against a
private person and, therefore, the responsibility of the State
extended no further than the involvement of
State bodies in the enforcement proceedings (see Shestakov
v. Russia (dec.), no. 48757/99,
18 June 2002).
- Moreover,
it is not the task of this Court to act as a court of appeal
or, as is sometimes said, as a court of fourth instance, from the
decisions of domestic courts. It is the role of the latter to
interpret and apply the relevant rules of national procedural and
substantive law. Furthermore, the domestic courts are best placed for
assessing the credibility of witnesses and the relevance of evidence
to the issues in the case (see, amongst many authorities, Vidal v.
Belgium, 22 April 1992, § 32, Series A no. 235-B, and
Edwards v. the United Kingdom, 16 December 1992, § 34,
Series A no. 247-B,).
- In
the instant case, however, it was the domestic
courts that found the relevant bailiffs’ department responsible
for failing to enforce the above judgment on several occasions and
acknowledged the applicant’s right to compensation.
Compensation, however, was not finally awarded on account of the
nullification of the proceedings against the bailiffs. The Court will
therefore start with an examination of the issue of access to a court
in the applicant’s proceedings against the bailiffs.
- The
Court reiterates that the procedural guarantees laid down in Article
6 secure to everyone the right to have any claim relating to his
civil rights and obligations brought before a court or tribunal; in
this way Article 6 embodies the “right to a court”,
of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect
(see Golder v. the United Kingdom, 21 February 1975, §§
28-36, Series A no. 18). Furthermore, the institution of proceedings
does not, in itself, satisfy all the requirements of Article 6 §
1. The Convention is intended to guarantee not rights that are
theoretical or illusory but rights that are practical and effective.
The right of access to a court includes not only the right to
institute proceedings but also the right to obtain a “determination”
of the dispute by a court. It would be illusory if a Contracting
State’s domestic legal system allowed an individual to bring a
civil action before a court without ensuring that the case was
determined by a final decision in the judicial proceedings. It would
be inconceivable for Article 6 § 1 to describe in detail the
procedural guarantees to be afforded to litigants – proceedings
that are fair, public and expeditious – without guaranteeing to
the parties that their civil disputes will be finally determined (see
Multiplex v. Croatia, no. 58112/00, § 45,
10 July 2003, and Kutić v. Croatia,
no. 48778/99, § 25, ECHR 2002 II).
- In
the instant case, the domestic authorities relied on the fact that
the State body had been liquidated without a legal successor as a
ground for the nullification of the proceedings against it. The Court
has established that the liquidation of a State institution without a
legal successor cannot dispense the State from the necessity to
enforce a judgment against the liquidated entity. It has further
noted that “to conclude otherwise would
allow the State to use this avenue to avoid payment of the debts of
its organs, especially taking into account that changing needs force
the State to make frequent changes in its organisational structure,
including by forming new organs and liquidating old ones”
(Nikitina v. Russia, no. 47486/07, § 19, 15 July 2010,
not final yet). A similar approach must be taken with regard to
judicial proceedings against a State organ in which an individual
challenges enforcement proceedings, given that enforcement was and
remains the State’s responsibility regardless of which
particular institution is responsible for the performance of this
function at any given moment. Therefore, the liquidation of the
bailiffs’ department without legal succession in the present
case led to a denial of the applicant’s right to have her
compensation claim determined by a final decision on the merits. The
Court finds therefore that such a denial deprived the applicant of
the right of access to a court. There has therefore been a violation
of Article 6 § 1 of the Convention in this respect.
- The
Court further considers that in the view of these findings it is not
necessary to examine the applicant’s complaint about the
non-enforcement of the judgment in her favour given against the
private company G.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 3,359 euros (EUR) in respect of pecuniary damage,
consisting of the equivalent in euros of the amounts awarded to her
by the domestic courts against company G. (UAH 17,594) and against
the bailiff (UAH 3,690). The applicant further claimed EUR 11,000 in
respect of non-pecuniary damage.
- The
Government objected to these claims. They noted that the judgment of
12 February 2004 was against a private company and the judgment of 10
November 2006 had not become final but had been quashed within the
ordinary appeal procedure. They considered that there was no causal
link between the applicant’s complaints under Article 6 and the
alleged pecuniary damage. As to the non-pecuniary damage claimed, the
Government considered it exaggerated and unsubstantiated.
- In
view of its findings above, the Court does not discern any causal
link between the violation found and the pecuniary damage alleged; it
therefore rejects this claim. On the other hand, it considers that
the applicant suffered non-pecuniary damage which cannot be
compensated by the mere
finding of
a violation of his Convention rights. Having regard to the
circumstances of the case, and ruling on an equitable basis, as
required by Article 41, it awards her EUR 2,600 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 200 for the costs and expenses incurred
before the domestic courts and before the Court.
- The
Government noted that no supporting documents had been submitted by
the applicant in respect of this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the length of
the proceedings against company G., and the non-enforcement of the
judgment against that company, and the complaint concerning access to
a court in the proceedings against the bailiffs admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings against company G.;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of access to a court in the
proceedings against the bailiffs;
- Holds that it is not necessary to examine
separately the applicant’s complaint under Article 6 § 1
of the Convention concerning the non-enforcement of the judgment of
12 February 2004;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,600 (two
thousand six hundred euros), plus any tax that may be chargeable to
the applicant, in respect of non-pecuniary damage, to be converted
into Ukrainian hryvnias at the rate applicable on the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
