British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
TELIGA AND OTHERS v. UKRAINE - 72551/01 [2006] ECHR 1135 (21 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1135.html
Cite as:
[2006] ECHR 1135
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF TELIGA AND OTHERS v. UKRAINE
(Application
no. 72551/01)
JUDGMENT
STRASBOURG
21 December
2006
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 Teliga 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,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 27 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 72551/01) 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, Mrs
Lyubov Volodymyrivna Teliga, the first applicant,
Mr Vasyl Fedorovych Zamozdra, the second applicant, and Mrs Tetyana
Grygoriyivna Golovatenko, the third applicant, and Mr Volodymyr
Leonidovych Bilyi, the fourth applicant (“the
applicants”), on 16 March 2000.
The
Ukrainian Government (“the Government”) were represented
by their Agents (Ms Zoryana Bortnovska, Ms Valeria Lutkovska and
Mr Y. Zaytsev).
On
20 February 2004 the Court decided to communicate the complaints
concerning the alleged violation of Articles 6 § 1, 13 and 1 of
Protocol No. 1 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
first applicant was born in 1949. The second applicant
was born in 1946. The third applicant was born in 1951. The fourth
applicant was born in 1961. All the applicants reside in
Oleksandriya, the Kirovograd region, and are Ukrainian nationals.
A. The proceedings as to annulment of the OM's property
transaction.
1. Proceedings instituted by the prosecution service
In
1994 the applicants became minority shareholders of the privatised
JSC “Oleksandriysky Myasokombinat” (the “OM”),
formerly State-owned enterprise, by investing property bonds issued
by the State in the statutory fund of the OM. In total, the
applicants had 0.25% of the OM's shares. In particular, the first
applicant owned 109 shares (0.15 % of the OM's shares), the second
and third applicant each owned 39 shares (0.05% of the OM's shares).
The fourth applicant also made some similar minor investments into
the OM. He did not specify a number of shares he owned.
On
17 June 1994 the OM was officially registered as a legal entity with
the Kirovograd Regional Council.
On
21 November 1997 the Kirovograd Regional Directorate of the
JSC “Ukrsocbank” (the “USB”) signed a
UAH 1,000,000
loan agreement with the OM, with its property used as security.
On
11 December 1997 the ad hoc arbitration court ordered the OM
to pay USB a sum of UAH 1,018,493.15
in compensation for loan arrears.
On
12 December 1997 the USB sold the property of the OM to “Eldorado”
(a private company).
In
April 1998 five of the OM's shareholders (not including the
applicants) T., P., K., M. and S. lodged a complaint with the
Prosecutor of the Kirovograd Region seeking annulment of the
transactions between the USB, the OM and “Eldorado”, the
company that allegedly infringed their property rights. They also
petitioned the Prosecutor to act as their legal representative and
institute the civil proceedings against the aforementioned companies
on their behalf.
On
2 July 1998 the Kirovograd Regional Arbitration Court rejected the
protest lodged by the Prosecutor of the Kirovograd Region
against the judgment of the ad hoc arbitration court of 11
December 1997 as being unsubstantiated.
In
June 1998 the Prosecutor of the Kirovograd Region instituted
proceedings on behalf of the above-mentioned shareholders T., P., K.,
M. and S. against the USB and “Eldorado” seeking
annulment of the aforementioned property transactions. (Contract on
sale of USB's property was appealed against by the State Tax
Inspectorate of Kirovograd and this appeal was subsequently joined by
the court to the claims lodged by the Prosecutor of Kirovograd Region
against OM).
On
3 July 1998 the Oleksandriya City Court (the “Oleksandriya
Court”) allowed the Prosecutor's claims and annulled the
secured loan agreement of 21 November 1997 concluded by the OM
and the agreement of 12 December 1997 between the USB and
“Eldorado”. It also ordered the restitution of property
to the OM. In particular, the court found that the real value of the
OM's secured property was UAH 12,478,649
and did not correspond to the sums paid for it by “Eldorado”.
This judgment was not appealed in cassation and became final and
binding.
On
21 September 1998 the President of the Kirovograd Regional Court
suspended the execution proceedings of the judgment of 3 July 1998
due to the initiation of supervisory review proceedings in the case
upon his protest.
On
7 October 1998 the Presidium of the Kirovograd Regional Court quashed
the judgment of the Oleksandriya Court of 3 July 1998 following a
protest of the President of the Kirovograd Regional Court. The
Presidium remitted the case for a fresh consideration. In particular,
the Presidium found that the first-instance court incorrectly
assessed circumstances of the case and misapplied the procedural and
substantive law. It instructed the lower court to assess evidence and
the case-file in full and to adopt a lawful and substantiated
judgment, based on the Presidium's considerations. A member of the
Presidium of the Kirovograd Regional Court expressed a dissenting
opinion in the case, disagreeing with the quashing of the judgment of
3 July 1998 that had become final and binding.
On
27 October 1998 the Deputy President of the Higher Arbitration Court
rejected the protest of the President of the Kirovograd
Regional Arbitration Court by which he sought to institute
supervisory review proceedings on the resolution of the Kirovograd
Regional Arbitration Court of 2 July 1998.
On
30 November 1998 the Deputy President of the Supreme Court refused to
initiate a supervisory review of the resolution of the Presidium of
the Kirovograd Regional Court of 7 October 1998.
On
29 March 1999 the President of the Kirovograd Regional Court, acting
within the limits of his jurisdiction under Article 133 of the Code
of Civil Procedure, decided that the case-jurisdiction should be
changed to the Leninsky District Court of Kirovograd. On 31 March
1999 the case file was sent to that court for further consideration
on the merits.
On
23 May 1999 the Oleksandriya Prosecution Service terminated the
criminal investigation into financial fraud committed by the OM's
management due to the absence of any corpus juris in their
actions.
On
7 June 1999 the Leninsky District Court of Kirovograd (the “Leninsky
Court”) rejected the claims of the Prosecutor of the Kirovograd
Region, who acted on behalf of the OM shareholders T., P., K., M. and
S. (see paragraph 13 above), as being unsubstantiated. This judgment
was not appealed in cassation and became final.
On
22 December 1999 the Presidium of the Kirovograd Regional Court
allowed the protest of the Deputy Prosecutor of the Kirovograd
Region and quashed the judgment of 7 June 1999, remitting the case to
the same court for a fresh consideration. In particular, the
Presidium of the Kirovograd Regional Court stated that, as the
Leninsky Court had failed to comply with the instructions laid down
in its previous resolution (see paragraph 15 above), the court had
breached the norms of procedural and substantive law. It also decided
that the case-jurisdiction be changed to the Kirovsky District Court
of Kirovograd (the “Kirovsky Court”).
On
13 June 2000 the Kirovsky Court, acting in accordance with Article
221 § 4 of the Code of Civil Procedure, adjourned the
proceedings in the case due to other proceedings pending before the
Oleksandriya Court which could affect the outcome of the case. These
proceedings concerned the complaint of Ms G.V.R., the director of
“Eldorado”, lodged against the OM and that concerned
similar factual circumstances and legal issues.
On
21 August 2000 the Deputy President of the Regional Court informed
the President of the Kirovsky Court of the need to expedite the
case-proceedings.
On
24 January 2001 the Oleksandriya Prosecution Service refused the
applicant's request to re-open the criminal investigation.
On
2 March 2001 the President of the Kirovograd Regional Court refused
to initiate supervisory review proceedings upon the applicants'
complaints lodged with the President of the Supreme Court. In
particular, he stated that there was no final decision taken in the
case and therefore, under Article 327 of the Code of Civil Procedure,
there was nothing to review in the course of supervisory review
proceedings.
On
4 April 2001 the Judge K. of the Oleksandriya Court informed the
applicants that the case had not been considered on the merits on
account of the court's excessive workload (in this respect judge K.
mentioned that to have examined 140 civil and 17 criminal cases
within the last three months), reference was also made to the fact
that the Ms G.V.R., had lodged two motions on 3 March and 15 May 2001
seeking to adjourn the hearing of the case as it was being considered
by other authorities.
On
13 June 2001 the Oleksandriya Court terminated the proceedings
concerning the claims of Ms G.V.R. as she had failed to appear before
the court. It also found that she had been duly notified about the
date and place of the hearing.
On
7 September 2001 Ms G.V.R. lodged fresh complaints with the
Oleksandriya Court against the OM seeking compensation for pecuniary
and non-pecuniary damage to her property.
On
11 September 2001 the Kirovograd Regional Prosecution Service
informed the applicants that they could bring the proceedings in
their case in the Kirovsky Court. They were further informed that the
case of Ms G.V.R. was terminated on 13 June 2001 (see paragraph
27 above) and that there were now no obstacles to considering their
case on the merits in the Kirovsky Court.
On
12 November 2001 the acting President of the Kirovograd Regional
Court of Appeal (the “Court of Appeal”) requested the
President of the Kirovsky Court to ensure the examination of the
applicants' case within a reasonable time. He also mentioned that the
competent judge of the court would have to provide plausible
explanations before the judicial disciplinary board as to the
applicants' claims that the examination of the Prosecutor's claims
lodged against OM had taken the Kirovsky Court an unreasonable time.
On
5 December 2001 the President of the Kirovsky Court informed the
applicants that the proceedings of which they complained (see
paragraph 12 above) were suspended on 13 June 2000 in view of
the outcome of the proceedings instituted by Ms G.V.R., which were
pending before Oleksandriya Court.
2. Proceedings joined by the first applicant
On
26 December 2001 the first applicant instituted civil proceedings in
the Kirovsky Court against “Eldorado-OM Ltd.” seeking to
annul the above mentioned property transaction.
On
7 February 2002 the Prosecutor of the Kirovograd Region suggested to
the court that the first applicant's claims and those of the
Prosecution, instituted on 17 June 1998, acting in the interests of
the State and the shareholders T., P., K., M. and S., be joined.
On
15 April 2002 the Prosecutor of the Kirovograd Region informed the
applicants that he had lodged a motion with the Kirovsky Court
requesting that the proceedings suspended on 13 June 2000 be resumed
(see paragraph 22 above).
On
16 April 2002 the President of the Court of Appeal decided to change
the case-jurisdiction from the Kirovsky Court to the Leninsky Court.
On
17 April 2002 the case-file was remitted to the Leninsky Court.
On
29 April 2002 the Oleksandriya Court informed the Leninsky Court of
the judgment of 13 June 2001 rejecting the claims of Ms G.V.R. and
others.
On
30 April 2002 the Leninsky Court joined the suits brought by the
first applicant and the public prosecutor against “Eldorado”
and the USB. On the same day, the judge resumed the proceedings.
On
14 May 2002 the court adjourned the proceedings due to the parties'
failure to appear.
On
3 June 2002 the President of the Kirovsky Court informed the first
applicant that the proceedings in the case were still adjourned. He
also informed her that the case file had been remitted to the
Leninsky Court for consultation due to the pending proceedings in
another case.
On
25 July 2002 the proceedings were adjourned due to the parties'
failure to appear.
On
8 and 29 November and on 24 December 2002 the court adjourned the
hearings due to the parties' failure to appear.
On
22 January 2003 the Leninsky Court terminated the proceedings in the
part supported by the public prosecutor (as the shareholders T., P.
and M. renounced their claims and the two remaining shareholders
were apparently disinterested in the proceedings). The proceedings
instituted by the first applicant were remained pending.
On
24 February 2003 the court adjourned the proceedings to 17 March
2003 due to the defendant's representative's failure to appear before
it.
On
17 March 2003 the Leninsky Court requested the President of the Court
of Appeal to change the jurisdiction of the case to the Oleksandriya
Court as the parties had failed to appear before the court for the
hearing again.
On
19 March 2003 the Court of Appeal remitted the first applicant's
claims lodged against “Eldorado” and the OM to the
Oleksandriya Court for consideration on the merits.
On
7 April 2003 the Court of Appeal informed the first applicant that
the case-jurisdiction had been transferred to the Oleksandriya Court
(in accordance with Article 133 of the Code of Civil Procedure). On
the same date a judge of the Oleksandriya Court invited the parties
for a meeting to decide on the proceedings in the case.
On
17 April 2003 the judge of the Oleksandriya Court decided that the
hearing be held on 27 May 2003.
On
27 May and 10 June 2003 the hearings were adjourned due to the
defendant's failure to appear.
On
10 July 2003 the Kirovograd Commercial Court declared the OM
bankrupt.
On
19 August and 1 September 2003 the defendant failed to appear again.
On
17 September 2003 the Oleksandriya Court rejected the first
applicant's claims due to her failure to comply with the statute of
limitation, finding that she had lodged her complaint more than three
years after the transaction took place.
On
14 November 2003 the Oleksandriya Court ordered the first applicant
to pay the court fee.
On
8 December 2003 the judge of the Oleksandriya Court refused leave to
appeal to the first applicant as she failed to pay the court fee for
its introduction.
On
5 February and 22 April 2004 the Court of Appeal quashed the
decisions of the Oleksandriya Court of 14 November and 8 December
2003, respectively, and remitted the case for a fresh consideration.
26
February 2004 the Oleksandriya Court rejected the first applicant's
appeal as she failed to comply with formalities for its introduction,
namely to provide a copy of the appeal.
On
4 March 2004 the applicant filed a copy of her appeal.
On
1 April 2004 the Court of Appeal ruled that it had jurisdiction to
examine the appeal.
On
22 April 2004 the Court of Appeal quashed the judgment of
17 September 2003 and remitted the case for a fresh examination
to the Oleksandriya Court in a different composition.
On
21 May 2004 the first applicant amended her claims.
On
2 July 2004 the Oleksandriya Court terminated the proceedings in the
case. In particular, the court stated that the first applicant was
not a party to the above mentioned property transaction.
On
10 March 2005 the Court of Appeal quashed this ruling and remitted
the case for an examination of its merits.
On
22 May 2006 the Oleksandriya Court rejected the first applicant's
claims lodged against “Eldorado” and the USB as to the
unlawfulness of the security and sales agreement of the property
belonging to OM.
On
7 June 2006 the Kremenchuk District Prosecutor informed the first
applicant that the criminal investigation into allegations of
financial fraud during the sale of OM's property was still pending.
On
9 June 2006 the first applicant appealed against the judgment of
22 May 2006.
On
17 July 2006 Mr G., a judge of the Court of Appeal, refused leave to
appeal to the first applicant as the first-instance court had failed
to rule on the payment of a court fee for the introduction of the
complaint [(as provided by the Decree of the Cabinet of Ministers of
Ukraine “On State Tax” from 1% from the cost of the claim
or from 3 to 100 minimal citizen's revenue free from taxation).] The
case-file was returned to the Oleksandriya Court for decision as to
the payment of the State court fee that was to be adopted before
28 August 2006.
The
proceedings appear to be still pending before the domestic courts.
B. The proceedings as to the enforcement of the
judgments given against the OM in the first applicant's favour
On
28 June 1998 the Oleksandriya Court ordered the OM to pay the first
applicant UAH 767.28
in salary arrears.
In
January 2004 the first applicant instituted civil proceedings against
the Oleksandriya Bailiffs' Service seeking to find unlawful the
failure to enforce the judgment given in her favour.
On
27 December 2004 the Oleksandriya Court allowed the first applicant's
claim and ordered the Oleksandriya Bailiffs' Service to pay her
UAH 1,383
in compensation for pecuniary and non-pecuniary damage.
On
12 April 2005 the Court of Appeal quashed this decision and remitted
the case for a fresh consideration.
The
proceedings are still pending before the first instance court.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine of 1996
The
relevant provisions of the Constitution of Ukraine provide as
follows:
Article 129
“...The main principles of judicial proceedings
are:
1) legality; ...
8) ensuring complaints against court
decisions by way of appeal and cassation, except in cases finalised
by law;
9) the mandatory nature of court decisions.
The law may also determine other principles of judicial
procedure in courts of specific jurisdiction.”
B. The Law “on the Introduction of Changes to the
Code of Civil Procedure” of 21 June 2001
74. The
relevant provisions of the Law of 21 June 2001 read as follows:
Chapter II
Transitional provisions
“1. This Law shall enter into force on
29 June 2001 ...
3. Appeals in civil cases lodged before 29
June 2001 shall be considered in accordance with the procedure
adopted for the examination of appeals against local court judgments.
4. Protests against judgments lodged before
29 June 2001 shall be sent to the Supreme Court of Ukraine for
consideration in accordance with the cassation procedure.
5. Judgments that have been delivered and
which have become enforceable before 29 June 2001 can be appealed
against, within three months, in accordance with the cassation
procedure [to the Supreme Court of Ukraine].”
THE LAW
I. PRELIMINARY CONSIDERATIONS
A. The fourth applicant
The
Court notes that the last and only letter sent to it by the fourth
applicant dated 10 August 2000. It further observes that on
10 July 2003 the first, the second and the third applicant
submitted a letter, stating to be the only applicants in the case.
Having
regard to Article 37 § 1 (a) of the Convention, the Court
concludes that the fourth applicant does not intend to pursue his
application. Furthermore, in accordance with Article 37 § 1 in
fine, the Court finds no special circumstances regarding respect
for human rights as defined in the Convention and its Protocols which
require the further examination of his complaints.
B. Scope of the case
On 12 July 2005 the first applicant lodged an
additional new complaint with the Court concerning the
non-enforcement of the judgment given in her favour against the OM, a
privatised company, by the Oleksandriya City Court on 28 June 1998.
In the Court's view, this complaint is not an elaboration of his
original complaint to the Court lodged one and a half years earlier
and on which the parties have commented. The Court considers,
therefore, that it is not appropriate now to take these matters up
separately (cf. Piryanik v. Ukraine, no. 75788/01, §§ 19-20,
19 April 2005).
II. ADMISSIBILITY
The
first, second and third applicants complained about the excessive
length of the civil proceedings in their case. They also alleged that
they had no effective remedies by which to complain about the
excessive length of the proceedings and the lack of effective access
to the domestic courts. They referred to Articles 6 § 1 and 13
of the Convention, which in so far as relevant, provide:
“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...”
“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.”
The
applicants further complained about the infringement of Article 1
of Protocol No. 1 to the Convention. They alleged that the OM's
shares, which they owned had lost their value as a result of unlawful
commercial transactions by the OM's management. This provision reads
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.”
A. The complaints raised by the second and the third
applicants
The
Government submitted that the complaints of the applicants
Ms Zamorozda and Ms Golovatenko should be found
inadmissible since they were not participants in the civil
proceedings concerning the invalidation of the OM's property
transaction. For this reason, their complaints under Articles 6 §
1 and 13 of the Convention should be rejected as incompatible ratione
personae in accordance with Article 34 of the Convention. As to
their complaints under Article 1 of Protocol No.
1, they should be rejected under Article 35 §§ 1
and 4 of the Convention as these applicants failed exhaust the
domestic remedies.
The
applicants disagreed. In particular, they stated that the fact that
the public prosecutor instituted proceedings on behalf of T., P., K.,
M. and S., five of the OM's shareholders (see paragraph 10 above),
does not exclude the interest of other shareholders in the outcome of
the proceedings.
The
Court observes that the public prosecutor's claims, joined with the
claims of the Tax Inspection (see paragraph 12 above), were lodged in
the interests of the aforementioned shareholders by a public official
(see Merit v. Ukraine, no. 66561/01, § 63,
30 March 2004), who had a power to intervene in order to
protect particular shareholders' constitutional rights, State and
public interests. The dispute at issue concerned the “determination
of the civil rights and obligations” of the shareholders T.,
P., K., M. and S., who inter alia, asked the prosecutor to
intervene on their behalf and initially participated in the
proceedings (see paragraph 10 above).
In
this respect, the Court reiterates that a person cannot complain
about a violation of his or her rights in the proceedings, to which
he or she was not a party, despite the fact that she or he was a
shareholder of the company that these proceedings concerned (see,
e.g., F. Santos Lda. and Fachadas v. Portugal (dec.),
no. 49020/99, 19 September 2000; Nosov v. Russia (dec.),
no. 30877/02, 20 October 2005). Taking into account that the second
and the third applicants have never been parties to proceedings
concerning the invalidation of the OM's property transaction, the
Court concludes that they may not be regarded as victims in respect
of the allegations they raise (see Fédération
chrétienne des témoins de Jéhovah de France
v. France (dec.), no. 53430/99, ECHR 2001 XI).
It
follows that the complaints lodged by the second and the third
applicants must be rejected as being incompatible ratione
personae, pursuant to Article 35 §§ 3 and 4 of the
Convention.
B. The complaints lodged by the first applicant
The
Government submitted that the complaints of the first applicant under
Articles 6 § 1 and 13 of the Convention should also be found
inadmissible since she joined the above mentioned proceedings only in
December 2001, and that that part of the proceedings complained about
was not unreasonably long. As to her complaints
under Article 1 of Protocol No. 1, they should be rejected under
Article 34 of the Convention as the applicant was a minor
shareholder of the OM.
The
applicant disagreed. In particular, she stated that the fact that the
public prosecutor instituted proceedings on behalf of five the OM's
shareholders did not exclude the interest of other shareholders in
the proceedings. As to the observations regarding her complaints
under Article 1 of Protocol No. 1, she claimed, without
providing any specific facts or documents, that the contested
transaction of the OM's property had caused the significant loss in
value of her shares.
C. The Court's assessment
The
Court notes at the outset, as to the applicant's complaints under
Article 1 of Protocol No. 1 to the Convention, that the applicant as
a minor shareholder, who owned 0.15% of the OM's shares (see
paragraph 6 above), cannot in principle claim to be a victim of a
violation of Article 1 of Protocol No. 1 as a result of actions
aimed at the property of the company (see Penton v. Turkey (dec.),
no. 24463/94, 14 April 1998), as piercing the corporate veil can
be justified only in exceptional circumstances (see Agrotexim and
Others v. Greece, judgment of 24 October 1995, Series A
no. 330 A, § 66). The Court does not discern any
exceptional circumstances in the present case. It therefore decides
that this part of the first applicant's complaints must be rejected
in accordance with Articles 34 of the Convention as being
incompatible ratione personae.
The
Court further notes, in relation to Article 6 § 1 of the
Convention, that the parties have not commented on its applicability
as to whether the dispute involved “determination of civil
rights and obligations”. It therefore will examine the case on
the assumption that this provision is applicable.
The
Court considers, in the light of the parties' submissions, that the
first applicant's complaints under Articles 6 § 1 and 13 of
the Convention as to the unreasonable length of the proceedings and
as to the lack of effective remedies in that respect, raise issues of
fact and law under the Convention, the determination of which
requires an examination of the merits. The Court concludes that these
complaints are not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. No other ground for declaring
them inadmissible has been established. They should therefore be
declared admissible.
III. MERITS
A. Alleged violation of Article 6 § 1 of the
Convention
The Government maintained that there were no
significant periods of delay that could be attributed to the domestic
authorities. In particular, they stated that the applicant was
herself responsible for the delays in April – December
2002.
The
applicant disagreed. In particular, she stated that the domestic
courts protracted hearings in the case.
The
Court finds that the period under consideration started on
26 December 2001, when the first applicant lodged claims in her
own behalf. It further, observes that the proceedings are still
pending before the first instance court, after more than four years
and eleven months.
The
Court recalls that the “reasonableness” of the length of
proceedings must be assessed in accordance with the circumstances of
the case and the following criteria: the complexity of the case, the
behaviour of the applicant and that of the competent authorities and
what was at stake for the applicant in the dispute (see Svetlana
Naumenko v. Ukraine, no. 41984/98, § 77,
9 November 2004).
It
considers that the subject matter of the litigation was not
especially complex.
As
to the applicant's conduct, the Court sees no periods of substantial
delay for which she was responsible. Moreover, the Government have
failed to submit any evidence thereof. The Court also notes that the
delays that could be attributed to the applicant related to periods
when the hearings were adjourned five times as both the applicant and
the defendant failed to attend the hearings (see paragraphs 38, 40
and 41 above). These delays amount to a total of about six months and
the authorities cannot be responsible for them. They cannot also be
responsible for adjournments of the case, for four months, due to the
defendant's failure to appear on five occasions (see paragraphs 48
and 50 above). However, they should have taken reasonable steps to
assure defendant's presence in the course of the hearing or could
have proceeded with the final examination of the case in defendant's
absence.
The
Court further observes that there were certain delays attributable to
the judicial authorities caused by their various remittals of the
case for a fresh consideration from the court of appeal to the
first-instance courts and reassignments of the case from one court to
the other. In particular, it is to be noted that the case had been
remitted for a fresh consideration on three occasions by the court of
appeal and the case-jurisdiction had been reassigned twice (see
paragraphs 35, 45, 58 and 61 above).
In
conclusion, regard being had to the circumstances of the instant
case, the length of the proceedings from December 2001 to present
date, namely four years and eleven months, the Court concludes that
there was an unreasonable delay in disposing of the applicant's case.
There
has accordingly been a violation of Article 6 § 1.
B. Alleged violation of Article 13 of the Convention
Lastly,
the first applicant complained that in Ukraine there were no
effective remedies which could be used to obtain redress for the
excessive length of the civil proceedings. She relied on Article 13
of the Convention.
The
Government submitted that the first applicant had a possibility to
introduce different procedural petitions with the courts hearing her
case seeking to expedite its processing. For instance, in case of a
failure of the respondent party to appear for hearings it was open
for the applicant to ask for examination of the case without its
participation or require that the respondent party's representatives
be obliged to appear before the court. The Government concluded that
there had been no violation of Article 13 of the Convention, in
respect of the lack of effective remedies for the applicant's
complaints under Article 6 § 1 of the Convention as to the
length of the proceedings.
The Court reiterates that Article 13 guarantees
an effective remedy before a national authority for an alleged breach
of the requirement under Article 6 § 1 to hear a case
within a reasonable time (see Kudła v. Poland [GC],
no. 30210/96, § 156, ECHR 2000-XI). It recalls that a remedy is
“effective” if it can be used either to expedite a
decision by the courts dealing with the case, or to provide the
litigant with adequate redress for delays that have already occurred
(see Kudła v. Poland, cited above, §§ 157-159).
Moreover, the remedy required by Article 13 must be “effective”
in practice as well as in law (cf. Kudła v. Poland [GC],
no. 30210/96, § 157, ECHR 2000-XI). The existence of such a
remedy must be sufficiently certain not only in theory but also in
practice, failing which it will lack the requisite accessibility and
effectiveness (see, inter alia, Mifsud v. France
(dec.) [GC], no. 57220/00, ECHR 2002-VIII).
As
to the remedies mentioned above and referring to the constant
case-law of the Court on the matter of length of proceedings, the
Court notes that the Government have not shown how recourse to such
remedies could have expedited the proceedings in the case or how it
could provide a redress for the delays in the applicant's proceedings
that were pending. Furthermore, the Government have not supplied any
example from domestic case-law to show that such proceedings by a
litigant were successful. The Court also notes that the letter of 12
November 2001 by the acting President of the Kirovograd Regional
Court had no effect on the course of the ensuing proceedings (see
paragraph 30 above).
In
these circumstances, the Court considers that it has not been
sufficiently established that recourse to the remedies
suggested by the Government would have been capable of affording
redress to the first applicant in relation to his complaints
concerning the length of the proceedings (see Efimenko v. Ukraine,
no. 55870/00, § 64, 18 July 2006).
Accordingly,
the Court concludes that there has been a violation of Article 13
of the Convention on account of the lack of an effective and
accessible remedy under domestic law for the first applicant's
complaint in respect of the length of his civil proceedings.
IV. 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
first applicant claimed UAH 80,000
in lost profits, UAH 60,000
in lost income and she also sustained losses to her unpaid yearly
pension that amounted to UAH 1,200.
She also claimed USD 100,000
in non-pecuniary damage.
The
Government submitted that the pecuniary damage claims were
unsubstantiated and exorbitant. They have requested the Court to
determine the amount of compensation on equitable basis in accordance
with the Court's previous case-law.
The
Court makes no award in relation to the pecuniary damage claimed by
the first applicant since there is no substantiation that that damage
flowed from the Convention breaches found. Nevertheless, the Court
finds that the first applicant may be considered to have suffered
some degree of frustration and distress, given the length of
proceedings in her case. It therefore awards her on an equitable
basis EUR 1,700 (euros) in respect of non-pecuniary damage.
B. Costs and expenses
The
first applicant claimed no costs and expenses for the Convention
proceedings neither for the proceedings before the domestic courts.
The
Court therefore makes no award under this head (see Dulskiy
v. Ukraine, no. 61679/00, § 100, 1 June 2006).
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
Decides
to strike the fourth applicant's complaints out of its list of cases;
Declares the first applicant's complaints
concerning the length of the proceedings and the lack of effective
remedies in that respect admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of
Article 6 § 1 of the Convention;
Holds that there has been a violation of
Article 13 of the Convention;
Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 1,700 (one
thousand seven hundred euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable;
(b) the
aforementioned sums shall be converted into the national currency of
Ukraine, at the rate applicable at the date of settlement;
(c) 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 unanimously the remainder of the first
applicant's claim for just satisfaction.
Done
in English, and notified in writing on 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
