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FIFTH
SECTION
CASE OF ANTONYUK v. UKRAINE
(Application
no. 17022/02)
JUDGMENT
STRASBOURG
11
December 2008
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 Antonyuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17022/02) 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 Oksana Vasylivna
Antonyuk (“the applicant”), on 19 March 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs V. Lutkovska.
- On
21 January 2005 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1909 and lives in Volodymyr-Volynsky, in the
Volyn Region, Ukraine.
- In 1971 the Volodymyr-Volynsky Town Council granted the
applicant a protected tenancy of a plot of land for permanent use
(безстрокове
користування
земельною
ділянкою);
subsequently the applicant gained property rights over the plot.
- According
to the applicant, in 1984 her neighbour, C., built a garage occupying
part of her land.
A. Court proceedings
- In
May 1994 the applicant instituted proceedings in the
Volodymyr-Volynsky Town Court (“the Town Court”)
against C., seeking to remove the impediments to her possession
of the plot of land at issue. She also sought compensation.
- On
10 August 1995, in the context of conciliatory proceedings, a
municipal land commission defined the boundary between the plots and
placed a set of land markers to make it visible.
- On
24 March 1997 the Town Court found in favour of the applicant. In
particular, it ordered C. not to impede the applicant’s use of
her land and dismissed the claim for compensation.
- On 17 April 1997 the Volyn Regional Court (since June
2001 the Volyn Regional Court of Appeal) rejected an appeal in
cassation by C.
B. Enforcement proceedings
- The
judgment of 24 March 1997 having become final, on 5 May 1997
the Volodymyr-Volynsky Town Bailiffs’ Service (“the
Bailiffs’ Service”) instituted enforcement proceedings.
- The Bailiffs’ Service requested the Town Court
to clarify the manner of enforcement of the judgment. On 19 June
1997 the Town Court indicated that the boundary between the plots
should be set out in accordance with the municipal land commission’s
plan of 10 August 1995. Nevertheless, until at least 2002, the
Bailiffs’ Service requested the court several times to provide
further clarifications. In letters of 21 January and 5 April 1999,
14 January and 19 December 2000, 19 November 2001 and
12 November 2002 the Town Court replied to these requests and noted
that the judgment of 24 March 1997 was final and subject to
enforcement, and that the court findings were unambiguous and clear.
The court also referred to its decision of 19 June 1997.
- Subsequently, on an unspecified date the local
prosecutor requested the Town Court to interpret its judgment of 24
March 1997. On 7 July 2003 the court discontinued the proceedings
upon this request as it had already interpreted the judgment in
question on 19 June 1997.
- Between
1997 and 2003 the Bailiffs’ Service made
over thirty visits to the site; however, because of C.’s
resistance and unwillingness to cooperate, they were unsuccessful.
Although C. was fined for such behaviour (the last occasion,
according to the Government, being on 1 November 2001), the
judgment of 24 March 1997 remained unenforced. The Bailiffs’
Service terminated the enforcement proceedings on a number of
occasions. However, following appeals by the applicant, those
decisions were quashed by the Town Court and the enforcement
proceedings were resumed.
- On 19 July 2002, following the court’s reversal
of one of the above-mentioned decisions to terminate the enforcement
proceedings, the Bailiffs’ Service refused to resume these
proceedings, as, in its view, the court findings in the judgment of
24 March 1997, as mentioned in the writ of enforcement, were vague
and imprecise. On 20 August 2002 the Town Court allowed a
complaint by the applicant against the Bailiffs’ Service and
set aside its decision. The court also ordered the Bailiffs’
Service to enforce the judgment at issue.
- On
several occasions during this period the applicant complained of
alleged omissions or inactivity on the part of the bailiffs to their
superiors.
- In a ruling of 6 November 2003 the Bailiffs’
Service terminated the enforcement proceedings on the ground that the
judgment of 24 March 1997 had been enforced in full.
C. Court proceedings against the Bailiffs’
Service after 6 November 2003
- In
November 2003 the applicant, being dissatisfied with the ruling of
6 November 2003, appealed against it. On 9 December 2003 the
Town Court quashed the impugned ruling, ordering the Bailiffs’
Service to resume the enforcement proceedings. On 25 February 2004
the Volyn Regional Court of Appeal quashed the judgment of 9 December
2003 and rendered a new one, rejecting the applicant’s appeal
against the ruling of 6 November 2003. On 16 January 2008
the Higher Administrative Court of Ukraine upheld the judgment of 25
February 2004.
- The
applicant further requested the Supreme Court of Ukraine to review
the case under the extraordinary review procedure but to no avail.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the State Bailiffs’ Service Act of
24 March 1998 and the Enforcement Proceedings Act of
21 April 1999 are summarised in the case of Dzizin v. Ukraine
((dec.), no. 1086/02, 24 June 2003).
THE LAW
I. LENGTHY NON-ENFORCEMENT OF THE JUDGMENT OF 24 MARCH
1997
21. The
applicant complained about the State authorities’ failure to
enforce the judgment of 24 March 1997. She also complained about the
length of the enforcement proceedings.
The
Court will examine these complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which provide,
in so far as relevant, as follows:
Article 6 § 1
“In the
determination of his civil rights and obligations ... everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...”
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.
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 ...”
A. Admissibility
1. The complaint about the State authorities’
failure to enforce the judgment of 24 March 1997
- The
Government, referring to the ruling of the Bailiffs’ Service of
6 November 2003 (see paragraph 17 above), contended that the
judgment in question had already been enforced.
- The
applicant disagreed, asserting that the judgment had still not been
enforced, notwithstanding her lack of success in judicial proceedings
to annul the bailiff’s decision on the termination of the
enforcement proceedings.
- The Court notes that on 6 November 2003 the
Bailiffs’ Service terminated the enforcement proceedings on the
ground that the judgment of 24 March 1997 had been enforced in
full. The ensuing court proceedings instituted by the applicant to
quash this decision and to resume the enforcement proceedings were
unsuccessful.
- The Court finds no reasons, in the circumstances of
the present case, to doubt the national courts’ findings.
Accordingly, the Court comes to the conclusion that the
judgment in question was enforced by the said date.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
2. The complaint about the length of the enforcement
proceedings
- The
Court observes that the fact that the judgment in question was
enforced does not deprive the applicant of her victim status in
relation to the period during which it remained unenforced (see
Romashov v. Ukraine, no. 67534/01, §§ 26-27,
27 July 2004).
- The
Court further reiterates that in enforcement proceedings against
private persons the responsibility of the State is limited to the
organisation and proper conduct of such proceedings (see Shestakov
v. Russia (dec.), no. 48757/99, 18 June 2002).
- The
Court further notes that it is not required to decide whether the
applicant should have claimed compensation from the State Bailiffs’
Service for damage allegedly inflicted in the course of the
enforcement proceedings against C. (see, for instance, Dzizin
v. Ukraine (dec.), no. 1086/02, 24 June
2003, and Kukta v. Ukraine (dec.), no. 19443/03,
22 November 2005) in order to comply with the requirement of
exhaustion of domestic remedies, as the Government did not raise in
their observations an objection to that effect (see, mutatis
mutandis, Dobrev v. Bulgaria, no. 55389/00,
§§ 110-112, 10 August 2006).
- The complaint must therefore be declared admissible as
it is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention and neither is it inadmissible on any other
grounds.
B. Merits
1. Period to be taken into consideration
- The
Government maintained that the period to be taken into consideration
had begun only on 11 September 1997, when the recognition
by Ukraine of the right of individual petition took effect.
Therefore, the applicant’s complaints relating to the events
prior to that date should be rejected as inadmissible ratione
temporis.
- The Court notes that the judgment in the applicant’s
favour became final and enforceable on 17 April 1997 (see paragraph 10
above), and, having regard to the above findings (see paragraph 25
above), that it was enforced by 6 November 2003. The Court notes
that the Convention entered into force in respect of Ukraine on
11 September 1997, almost five months after the date of the
judgment when the judgment became final. The
Court further observes that after 11 September 1997 the
enforcement proceedings lasted for six years and almost two months.
However, in assessing the reasonableness
of the time that elapsed after 11 September 1997, account must
be taken of the state of proceedings on that date (see, mutatis
mutandis, Milošević v. “the former Yugoslav
Republic of Macedonia”, no. 15056/02, § 21,
20 April 2006; Styranowski v. Poland, no. 28616/95,
§ 46, ECHR 1998-VIII; and Foti and Others v. Italy,
10 December 1982, § 53, Series A no. 56).
- Reasonableness
of the length of the enforcement proceedings
(a) Article 6 § 1 of the Convention
- In
their observations on the merits of the case, the Government
contended that there had been no violation of Article 6 § 1 of
the Convention. In particular, they stated that the delays in the
proceedings at issue had been caused by C.’s resistance to the
bailiffs’ activities and by defects in the judgment that
required the bailiff to request the Town Court to interpret and
clarify it. They also argued that the applicant’s manifold
appeals and complaints about the bailiffs’ alleged omissions or
inactivity had frustrated the conduct of the enforcement proceedings.
Lastly, they pointed out that the Bailiffs’ Service had
performed all the necessary actions in order to enforce the judgment
of 24 March 1997 in the applicant’s favour.
- The
applicant disagreed.
- The Court accepts the Government’s contention
that C.’s lack of cooperation and resistance to the bailiff’s
actions caused delays in the enforcement proceedings. However,
according to the Government’s observations, the last time C.
was fined was on 1 November 2001, and therefore this argument is not
pertinent to the period after that date. At the same time the Court
stresses that the delays before this date cannot be imputed solely to
C. It is true that the bailiffs fined him on several occasions but
the judgment of 24 March 1997 nevertheless remained unenforced
until 6 November 2003. Given the length of the period in
question, the effectiveness of the sanctions to which the Bailiffs’
Service resorted in order to force C. to comply with the judgment in
the applicant’s favour may be called into question.
- The
Court also agrees with the Government’s submission that the
applicant’s complaints and appeals against the bailiffs’
decisions to some extent frustrated the conduct of the enforcement
proceedings. However, having regard to the fact that in most cases
these complaints and appeals were allowed by the domestic courts, the
effect of the latter submission is considerably diminished.
- It
follows that these arguments do not provide a plausible justification
for the length of the proceedings as a whole.
- The
Court further observes that until late 2002 the Bailiffs’
Service, and in 2003 the local prosecutor, requested the Town Court
on several occasions to clarify the manner of enforcement of the
judgment in the applicant’s favour. The Town Court, in turn,
having already interpreted the judgment once on 19 June 1997,
subsequently insisted that the findings in its judgment were
unambiguous and needed no further clarification (see paragraphs 12-15
above). The Court notes that it is impossible to conclude from the
materials in its possession whether the judgment in question and its
further interpretation by the national court were sufficient for the
enforcement of this judgment. However, for a considerable period of
time the discrepancies between the national authorities, regardless
of their background, thwarted the progress of the enforcement
proceedings.
- Having
regard to the particular circumstances of the present case, the Court
comes to the conclusion that the respondent State has fallen short of
its obligation in this respect.
- There
has accordingly been a violation of Article 6 § 1
of the Convention.
(b) Article 1 of Protocol No. 1 to the
Convention
- The Government submitted that the plot of land granted
to the applicant for permanent use could not be viewed as her
“possession” for the purposes of Article 1 of Protocol
No. 1.
- The applicant disagreed.
- The Court has recently found that the applicant’s
title to a plot of land granted for permanent use constitutes a
“possession” falling within the ambit of Article 1 of
Protocol No. 1 (see, mutatis mutandis, Ostapenko
v. Ukraine, no. 17341/02, §§ 11 and
44-48, 14 June 2007). Furthermore, the Court points out that
subsequently the applicant gained property rights over the plot at
issue (see paragraph 5 above).
- Having regard to its above findings, the Court
considers that the impossibility for the applicant to have this
judgment enforced “within a reasonable time” constitutes
an interference with her right to peaceful enjoyment of her
possessions.
- The
Court has already found violation of Article 1 of Protocol
No. 1 in cases like the present application (see, for instance,
Fuklev v. Ukraine, no. 71186/01, §§ 90-93,
7 June 2005). It finds no reason to reach a different conclusion in
the present case.
- Accordingly, there has been a violation of Article 1
of Protocol No. 1.
II. OTHER COMPLAINTS
- The
applicant also complained about the outcome of the court proceedings
in which she had sought to annul the ruling of 6 November 2003.
She stated in this connection that the Higher Administrative Court of
Ukraine had failed to invite her to attend the hearing.
- Having
carefully considered the applicant’s submissions in the light
of all the material in its possession, the Court finds that, in so
far as the matters complained of are within its competence, they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
III. 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 20,000 Ukrainian hryvnias (UAH)
in respect of non-pecuniary damage. Subsequently she increased this
sum to EUR 30,000; however, this was done outside the set
time-limit.
- The
Government found these claims unsubstantiated and exorbitant. They
suggested that the finding of a violation would be sufficient just
satisfaction in the present case.
- The
Court considers that the applicant must have sustained non-pecuniary
damage as a result of the violations found. Making its assessment on
an equitable basis, as required by Article 41 of the Convention,
the Court awards the applicant EUR 2,000 under this head.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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 under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 concerning the
excessive length of the enforcement proceedings 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 excessive length of
the enforcement proceedings;
- Holds that there has been a violation of Article
1 of Protocol No. 1 in respect of the excessive length of the
enforcement proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000
(two thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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 11 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
