ZUBKO AND OTHERS v. UKRAINE - 3955/04 ; 5622/04 ; 8538/04 ; [2006] ECHR 479 (26 April 2006)

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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

1. 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 Fedorovna Oleksiyenko, Mr Oleksandr Ivanovych Yankul and Ms Petro Mykolayovych Remez (hereinafter referred to as “the applicants”), on 2 and 5 January, 12 February and 3 March 2004, respectively.

2. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Zoryana Bortnovska, succeeded by Ms Valeriya Lutkovska, the 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.

4. The first applicant was born in 1954. The second applicant was born in 1971. The fourth applicant was born in 1963. The first, second and fourth applicants are judges who reside in Kirovograd. The third applicant, a retired judge, was born in 1942 and currently resides in Gayvoron, the Kirovograd region.

5. In November 2002 the applicant lodged complaints with the Pechersky District Court of Kyiv (the “Pechersky Court”) against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delay in their payment.

6. On 16 December 2002 the Pechersky District Court of Kyiv allowed the applicant’s claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 5,807.26^[1] 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”) refused 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 refused to enforce the judgment for lack of budgetary funds, and stated that the responsibility for enforcement lay with the State Judicial Administration.

10. On 6 November 2004 the applicant received the sum due to him by the judgment of 16 December 2002 (pay slip no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, i.e. about one year and four months.)

11. In November 2002 the applicant lodged complaints with the Pechersky Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delay in their payment.

12. On 16 December 2002 the Pechersky Court allowed the applicant’s claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 10,291.61^[2] 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 refused to initiate enforcement proceedings in the case and informed the applicant that he should lodge the execution writs with the State Treasury.

15. On 5 February 2004 the State Treasury returned the writs of execution for the judgment of 16 December 2002 unenforced due to the lack of funds in the State budget.

16. On 15 November 2004 the applicant received the sum due to her (pay slip no. 173). (The enforcement proceedings lasted from July 2003 to November 2004, i.e. about one year and four months.)

17. On 22 March 2000 the applicant retired, following a decision of the Verkhovna Rada to dismiss him.

18. In November 2001 the applicant lodged complaints with the Pechersky Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delay in their payment.

19. On 14 January 2002 the Pechersky Court allowed the applicant’s claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 4,822^[3] in compensation.

21. On 21 May 2003 the State Treasury refused to enforce the judgment for 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 due to the lack of funds in the State budget for such expenditures.

23. On 8 September 2003 the Deputy Head of the State Judicial Administration informed the applicant that they were not liable for payment of debts that had been incurred before the State Judicial Administration was established.

24. On 22 December 2003 the PBS left the writ of execution unenforced and returned it to the applicant as 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 (pay slip no. 163).

26. On 30 November 2004 the applicant received the sum due to him (a payment order to his bank account no. 3698). (The enforcement proceedings lasted from May 2002 to November 2004, i.e. about two years and six months.)

27. In November 2002 the applicant lodged complaints with the Pechersky Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delay in their payment.

28. On 16 December 2002 the Pechersky Court allowed the applicant’s claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 5,978.34^[4] 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 refused to initiate enforcement proceedings in the case and informed the applicant that she 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 refused to enforce the judgment for lack of budgetary funds, and stated that the responsibility for enforcement lay with the State Judicial Administration.

32. On 6 November 2004 the applicant received the sum due to him (pay slip no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, i.e. about one year and four months.)

“All expenses of the State for social needs, their amounts and aims shall be determined by the Law on the State Budget.”

“Everyone has the right to work, including the possibility to earn one’s living by labour that he or she freely chooses or to which he or she freely agrees.

“The independence and immunity of judges are guaranteed by the Constitution and the laws of Ukraine.

“Justice is administered by professional judges and, in cases determined by law, people’s assessors and jurors.

Professional judges shall not belong to political parties and trade unions, take part in any political activity, hold a representative mandate, occupy any other paid positions, perform other remunerated work except scholarly, teaching and creative activity. ...”

“In the administration of justice, judges are independent and subject only to the law.”

“The State ensures funding and proper conditions for the operation of courts and the activity of judges. Expenditures for the maintenance of courts are allocated separately in the State Budget of Ukraine. ...”

34. Article 123 of the Law on the Judiciary provides that the salary of a judge and his/her social protection shall ensure his/her financial independence and shall be determined in accordance with the Law on the Status of Judges. The amount of a judicial salary cannot be reduced.

“... Budget funds shall be spent for the purposes determined by budgetary assignments only...”

“... Any budget liabilities can be undertaken and payments from the State budget made only in the event that there are budgetary assignments for these purposes.”

D. The 2003 State Budget Act (adopted by 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 a budgeted organisation, 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 assignments fixed for financing that budgeted organisation.

E. Law no. 1801-IV of 17 June 2004 on the Introduction of Changes to the 2004 State Budget Act

37. The State Budget provided UAH 1,067,200^[5] for the enforcement of judgments awarding judicial salary and benefit arrears.

F. Law “on the Introduction of Changes to the Enforcement Proceedings Act” (adopted by Law no. 606-XIV of 21 April 1999)

38. Article 20-1 of the Law provides that the bailiffs’ departments of the Ministry of Justice shall be responsible for the enforcement of judgments which concern the debts of the executive branch of government.

G. The Regulations on the State Judicial Administration (approved by the President’s 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 accountancy of the courts and shall be responsible 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 shall be responsible for the implementation of the State Budget and shall control its expenditure.

I. The Recommendation of the Committee of Ministers No. 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 to it

1. 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; ...”

“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. The 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.”

44. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

45. The first, second and fourth applicants complain about the lengthy non-enforcement of the judgments of the Pechersky District Court of Kyiv of 16 December 2002. The third applicant complains about the length of enforcement of the judgment of the Pechersky District Court of Kyiv of 14 January 2002. In their submissions, they rely 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 complain that the State infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1, which provides 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.”

47. The second applicant complains that she had no effective remedies for her complaints under Article 6 § 1 of the Convention about the length of the non-enforcement of the judgment given in her favour, as required by 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 raised in relation to all applications as to exhaustion of domestic remedies and admissibility ratione personae

48. The Government alleged non-exhaustion of domestic remedies by the applicants, on the ground that they had not lodged a claim with the domestic courts challenging the inactivity of the State Treasury and the State Judicial Administration, or claiming compensation for irregular enforcement proceedings or for the devaluation of the amounts awarded. They further alleged that as the judgments were enforced the applicants were no longer victims of the violation claimed.

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). The Court finds no reason to depart from its case-law and accordingly dismisses these objections.

C. Applicability of Article 6 § 1 to the complaints about the non-enforcement of the final judgments of 16 December 2002 lodged by the first, second and fourth applicants

51. The Government submitted that Article 6 § 1 of the Convention was not applicable to the enforcement proceedings in the applications brought by the first, second and fourth applicant, since it did not apply to disputes of public officials with the State. They further contended that the dispute concerned issues of public law and did not fall within the notion of civil rights and obligations.

53. The Court notes that the judiciary, while not being part of the ordinary civil service, is nonetheless part of the public service. A judge has specific responsibilities in the field of the administration of justice, which is a sphere in which States exercise sovereign powers. Consequently, the judge participates directly in the exercise of powers conferred by public law and performs duties designed to safeguard the general interests of the State (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001).

54. The Court further recalls that disputes between administrative authorities and employees who occupy posts involving the participation in the exercise of powers conferred by public law do not attract the guarantees of Article 6 § 1 (see Pellegrin v. France [GC], no. 28541/95, §§ 64-67, ECHR 1999-VIII). In these circumstances, the Court considers that Article 6 of the Convention is not applicable in the instant case to the dispute over the payment of arrears in judicial benefits between the applicants, who are active judges, and the Ukrainian State. Accordingly, Article 6 § 1 of the Convention does not apply to the cases brought by the first, second and fourth applicants.

55. It follows that this part of the applicants’ complaints is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

D. Admissibility of the complaint under Article 6 § 1 of the Convention in relation to the third applicant’s case

56. The Court notes that the parties raised no objection as to the applicability of Article 6 § 1 of the Convention in relation to the enforcement of a judgment given in favour of a retired judge. Nevertheless, the Court reconfirms its reasoning in previous, similar cases against Ukraine, where it found that Article 6 § 1 under its civil head was applicable to the judicial proceedings between a retired civil servant and his / her former employer when a dispute concerned outstanding financial obligations after retirement (see Svintitskiy and Others v. Ukraine (dec.), no. 59312/00, 18 January 2005).

57. Accordingly, the Court finds that Article 6 § 1 applies to the complaint about the non-enforcement of the final judgment which was in the third applicant’s favour. No other reason for declaring it inadmissible has been established.

E. Admissibility of the complaints under Article 1 of Protocol No. 1 to the Convention brought by all the applicants

58. For the reasons expressed above under Article 6 § 1 of the Convention (paragraphs 48-50), the Court rejects the Government’s objections to the admissibility of this part of the application on grounds of non-exhaustion of domestic remedies or non-victim status. Furthermore, it notes that the Government did not raise any other objections to the admissibility of the applicants’ complaints under Article 1 of Protocol No. 1. Consequently, the Court finds that these complaints are not manifestly ill-founded or indeed inadmissible on any other ground cited in Article 35 of the Convention. They must therefore be declared admissible.

F. Admissibility of the complaint under Article 13 of the Convention brought by the second applicant

59. As to the applicant’s complaint raised in relation to Article 6 § 1 of the Convention and Article 13, the Court, having already found that Article 6 § 1 of the Convention does not apply in the present case (see paragraphs 51-55 above), reaches the same conclusion under Article 13 (see Balmer-Schafroth and Others v. Switzerland, judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, § 42). It therefore rejects the second applicant’s complaint under Article 13 of the Convention, in relation to Article 6 § 1 of the Convention, as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, in accordance with Article 35 § 4.

A. Alleged violation of Article 6 § 1 of the Convention in the third applicant’s case

60. The Government contended that the delay in enforcement of the judgment given in the applicant’s favour was due to the complexity of the enforcement proceedings, the lack of funds in the State budget and the technical errors committed by the domestic courts. (In particular, they mentioned that the defendant cited in the execution writs was incorrect, i.e. it should have been the State Treasury Department and not the Ministry of Finance).

62. The Court notes that the non-payment of the judgment debt was due to the failure of the State to make provision for the appropriate expenditures in the State Budget. However, by failing for two years and six months to take the necessary steps to comply with the final judicial decision in the present case, the Ukrainian authorities deprived the provisions of Article 6 § 1 of much of their useful effect (cf. Shmalko v. Ukraine, no. 60750/00, §§ 43-47, 20 July 2004). Accordingly, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.

B. Alleged violation of Article 1 of Protocol No. 1 to the Convention in all the present applications

63. The Government in their submissions contested that the awards made by the domestic courts to the applicants constituted possessions within the meaning of Article 1 of Protocol No. 1, as they concerned payments for judicial benefits provided by the State. Moreover, they alleged that the arrears granted were not even legitimate expectations, as they were directed against the wrong debtor – the Ministry of Finance and not the State Judicial Administration. The Government further referred to the difficult financial situation of the State (cf. Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, §§ 27 and 30) and the technical complications encountered in the course of the enforcement proceedings. Moreover, they mentioned that the State did not remain passive in solving the problem as they made a budgetary allocation of UAH 1,067,200^[6] for the payment of the various arrears. They further concluded that these judgments were enforced in full, without undue delay, and accordingly there was no infringement of Article 1 of Protocol No. 1 to the Convention.

64. The applicants submitted that the State was liable for the outstanding debts due to them and that, having failed to pay those debts for a long time, the State had deprived them of the actual possession of their property, in violation of Article 1 of Protocol No. 1.

65. The Court draws attention to its case-law that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other judgments, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III; Jasiūnienė v. Lithuania, no. 41510/98, § 45, 6 March 2003).

66. The Court observes that an interference with the applicants’ rights was partly justified by the complications related to the allocation of funds for judicial benefits and the enforcement of the related judgments out of the State Budget. These complications also partly related to reforms in the judicial system of Ukraine and to the introduction of changes in the system of administering the finances of the judiciary, with the subsequent transfer of these functions from the Ministry of Justice to the State Judicial Administration.

67. In the Court’s opinion, the complications referred to by the Government undeniably involved a legitimate public interest, but did not strike a fair balance between the State’s interests and those of the applicants, who moreover were responsible for the exercise of important public functions in the administration of justice. In particular, the Court observes that the litigation at issue concerned compensation for the authorities’ failure between 1995 and 2001 to comply with their legislative obligation to provide the applicants with the judicial benefits envisaged by the Constitution and the Judiciary Act (see paragraphs 33-34 above). The Court considers, therefore, that the applicants’ situation, in particular their sensitive status as independent judicial officers, required that the authorities enforce the judgments and earmark the necessary funds to that end without delay.

68. In particular, in the Court’s view, the failure of the State to provide judicial benefits to judges in a timely manner is incompatible with the need to ensure their ability to exercise their judicial functions independently and impartially, in order to be shielded from outside pressures aimed at influencing their decisions and behaviour (see paragraph 43 above). In this connection the Court refers to the relevant legal instruments of the Council of Europe, such as the Recommendation of the Committee of Ministers on the Independence, Efficiency and the Role of Judges and the European Charter on the Status of Judges, which clearly stress the importance of these factors (see paragraphs 41-42 above).

69. The Court is of the opinion that the failure to ensure the adequate and timely payment of the remuneration of domestic court judges, and the uncertainty in which they were left, upset the fair balance that has to be struck between the demands of the public interest and the need to protect the applicants’ rights to the peaceful enjoyment of their possessions. Consequently, by failing to comply with the judgments given in favour of the applicants, the national authorities for a considerable period prevented the applicants from receiving in full the judicial benefits to which they were entitled by law, which could impede the exercise of their judicial functions with complete devotion.

70. The Court is therefore of the opinion that the impossibility for the applicants to obtain the enforcement of the judgments in their favour for a period of one year and four months (the first, second and fourth applicants) and two years and six months (the third applicant), breached their right to the peaceful enjoyment of their possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1.

“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.”

72. The first, third and fourth applicant each claimed EUR 10,000 in respect of non-pecuniary damage. The second applicant claimed EUR 15,000 in compensation for non-pecuniary damage. They made no claims as to pecuniary damage or costs and expenses.

73. The Government argued that the claims were unsubstantiated and the amounts claimed exorbitant.

74. The Court considers that the applicants may be considered to have suffered some non-pecuniary damage as a result of the serious violations found which cannot be compensated by the Court’s finding of a violation alone. Making its assessment on an equitable basis, as required by Article 41 of the Convention, and taking into account the special situation of the applicants’ important judicial status, the Court considers it reasonable to award the first, second and fourth applicants the sum of EUR 3,000 in non-pecuniary damage. It also awards the third applicant EUR 5,000 under this head.

75. 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.

2. Declares the complaints with regard to the alleged infringement of Article 1 of Protocol No. 1 to the Convention in all applications, as well as the third applicant’s complaint concerning the alleged infringement of Article 6 § 1 of the Convention, admissible, and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in the third applicant’s case (no. 8538/04);

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in all four applications;

(a) that the respondent State is to pay each of the first, second and fourth applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;

(b) that the respondent State is to pay the third applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;

(c) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

(d) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 26 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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You are here: BAILII >> Databases >> European Court of Human Rights >> ZUBKO AND OTHERS v. UKRAINE - 3955/04 ; 5622/04 ; 8538/04 ; [2006] ECHR 479 (26 April 2006) URL: http://www.bailii.org/eu/cases/ECHR/2006/479.html Cite as: [2006] ECHR 479