AS TO THE ADMISSIBILITY OF
by Igor Vasylyovych PANCHENKO
The European Court of Human Rights (Fifth Section), sitting on 17 February 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 12 January 2002,
Having regard to the partial decision of 3 April 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Igor Vasylyovych Panchenko, is a Ukrainian national who was born in 1965 and lives in Kyiv. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 December 1994 the applicant bought a flat belonging to a certain I. For the seller’s part, the contract was signed by a certain G. acting as I.’s agent.
On March 1995 I. instituted proceedings in the Minskyy District Court of Kyiv (the “Minskyy court”) against the applicant seeking invalidation of the above contract of sale, alleging that it had been concluded without his knowledge and against his will. The applicant, in his turn, lodged a counter-claim for eviction of I. from the flat.
In a judgment of 25 April 1996 the court found for I. On 24 July 1996 the Kyiv City Court (the “Kyiv court”) upheld that judgment.
On 4 February 1997 the Deputy President of the Supreme Court, following the applicant’s request, lodged a protest with the Presidium of the Kyiv court, seeking initiation of supervisory review proceedings in the case. On 3 March 1997 the Presidium allowed the protest, quashed the decisions of 25 April and 24 July 1996, and remitted the case for fresh consideration.
On 15 December 1998 the Minskyy court found for I. By a ruling of 29 January 1999 it rejected the applicant’s objections as to the accuracy of the minutes of the court hearings.
On 25 October 1999 the Deputy Prosecutor of Kyiv, following the applicant’s request, lodged a protest with the Presidium of the Kyiv court, seeking initiation of supervisory review proceedings in the case. It remains unknown whether the Presidium considered the merits of the protest.
On 24 November 1999 the Minskyy court quashed the ruling of 29 January 1999 in the light of unspecified newly discovered circumstances, and accepted the applicant’s objections to the minutes of the court hearings, which had previously been rejected. It also quashed the judgment of 15 December 1998.
On 31 October 2000 the Minskyy court granted the applicant’s counterclaim and ordered I.’s eviction from the flat.
On 22 November 2000 the court adopted a supplementary decision by which it rejected the applicant’s claim seeking to invalidate I.’s ownership certificate received in 1994.
On the same date, the court referred the applicant’s criminal complaint against I. to the prosecution.
On 27 December 2000 the Kyiv court upheld the judgment of 31 October 2000, but quashed the ruling of 22 November 2000 and partially amended the supplementary decision adopted on the same day.
On 15 March 2001 I. was evicted from the disputed flat.
On 19 April 2001 the Chairman of the Kyiv court lodged a supervisory review protest with the same court, seeking re-examination of the case. He submitted, inter alia, that the courts had failed to give due regard to I.’s references to the ongoing criminal investigations into the matter.
On 24 April 2001 the applicant sold the flat to a certain M.
On 28 May 2001 the Presidium of the Kyiv court allowed the above supervisory review protest and quashed the decisions of 31 October and 27 December 2000, remitting the case to the Minskyy court for further consideration.
On 11 October 2001 a three-judge panel of the Supreme Court rejected the applicant’s appeal in cassation against the above ruling of the Presidium of the Kyiv court.
On 8 February 2002 the applicant unsuccessfully requested the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”), which was examining the case in the first instance, to suspend the proceedings pending the outcome of the criminal investigation.
In a judgment of 25 April 2002 the Kyiv Court of Appeal decided in the applicant’s favour.
On 19 February 2003 the Supreme Court upheld the judgment.
B. Relevant domestic law
The relevant domestic law is stated in the Court’s partial decision in the present case adopted on 3 April 2006.
The applicant complained under Article 6 § 1 of the Convention of excessive length of the civil proceedings. He next complained under Articles 6 § 1 and 13 of the Convention of the lack of access to a court, since his appeal in cassation against the decision of the Presidium of the Kyiv City Court of 28 May 2001 was not considered by the Supreme Court of Ukraine sitting as a chamber in civil cases.
The applicant relied on Articles 6 § 1 and 13 of the Convention, which read, 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 ... hearing within a reasonable time by [a] ... 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 applicant disputed the Government’s argument contending, in particular, that the ongoing proceedings prevented his access to and use of the flat in dispute for six years and one month, from 8 December 1994 to 15 March 2001, when the previous owner I. was refusing to leave it.
In so far as the applicant complained that he did not have access to a court, the Court observes that the impugned proceedings in the Supreme Court concerned an intermediate procedural issue preceding the final determination of the dispute in his favour. In these circumstances, the applicant ceased to have any grounds for claiming to be a victim of the alleged denial of his right of access to a court. Accordingly, the Court rejects this part of the application as being incompatible ratione personae with the provisions of the Convention under its Article 35 §§ 3 and 4.
As to the period under consideration, the Court notes that the proceedings in question lasted for a total of about six years, excluding the intervals between 24 July 1996 and 3 March 1997, 15 December 1998 and 24 November 1999, 27 December 2000 and 28 May 2001, when no proceedings were pending. The Court’s jurisdiction ratione temporis covers only the period after the entry into force of the Convention with respect to Ukraine on 11 September 1997, which amounts to four years and one month.
The Government observed that the overall length of the proceedings was not excessive. They contended in particular that there had not been any significant delays in the proceedings attributable to the State, and that those which had occurred, had mostly been triggered by the parties’ attempts to get the case reconsidered afresh.
The applicant contested these arguments.
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).
The Court finds that the dispute, which concerned the applicant’s entitlement to a flat, was not particularly complex, although it depended to some extent on the defendant’s arguments stemming from the criminal investigation into the matter.
It observes that though the case was re-examined on several occasions it was dealt with by the courts of two levels of jurisdiction within relatively short periods of time (during one year and a half on average). The Court further observes that the applicant himself sought to have those court decisions which were unfavourable to him overturned, requested suspension of the proceedings, and challenged the minutes of the hearings. While he cannot be blamed for using the avenues available to him under domestic law to seek to protect his interests, he must accept at the same time that such actions necessarily prolong the proceedings concerned (see Malicka Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).
The Court also finds that the proceedings at issue were of some importance for the applicant. Nonetheless, it does not find any ground for the domestic courts to deal with his case with urgency vis-à-vis other cases pending before them.
In these circumstances, the Court finds that, on balance, the duration of the judicial proceedings in the applicant’s case did not exceed what may still be considered “reasonable” (see, for example, Zhurba v. Ukraine (dec.), no. 11215/03, 19 June 2007, and Belukha v. Ukraine, no. 33949/02, §§ 66 67, 9 November 2006).
Accordingly, the present complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen