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FIFTH SECTION

CASE OF SOKOR v. UKRAINE

(Application no. 49009/07)

JUDGMENT

STRASBOURG

9 December 2010

This judgment is final but it may be subject to editorial revision.

In the case of Sokor v. Ukraine,

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

Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 16 November 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 49009/07) 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 Valentyna Ivanivna Sokor (“the applicant”), on 26 October 2007.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.

On 19 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and lives in Kyiv.

Between September 1999 and November 2000 she was a director of a local branch of the U. private company (“the branch”). On 24 November 2000 the branch was liquidated. However, according to the applicant, the local tax authorities continued referring to her as “the director of the branch” in their fiscal documents, obliged her to provide and sign certain documents on behalf of the branch and to provide comments on the fiscal documents related to its activities.

A. The first set of proceedings

On 21 March 2001 the applicant lodged an administrative law complaint with the Kagarlyk Court challenging the lawfulness of the actions of the tax authorities. In the course of the proceedings, she also asked the court to declare that the statements made by the respondent’s officials at the court hearings concerning her involvement in the activities of the branch after its liquidation were untruthful.

On 26 April 2001 the court suspended the proceedings pending the outcome of a commercial dispute concerning the lawfulness of the liquidation of the branch. On 28 December 2001 the Kyiv City Commercial Court discontinued the proceedings concerning the latter matter.

On 12 November 2001 and 14 January 2002 the applicant requested the Kagarlyk Court to resume the proceedings in her case.

On 6 October 2003 the court resumed the proceedings.

On 25 December 2003 the court discontinued the proceedings on the ground that the dispute had already been determined by the courts. On 23 March 2004 the Kyiv Regional Court of Appeal quashed that decision and remitted the case for fresh consideration. On 9 November 2006 the Higher Administrative Court upheld the decision of 23 March 2004.

On 20 April 2007 the Kagarlyk Court partly allowed the applicant’s complaint and found that the tax authorities had unlawfully required her to act as the director of the branch in the course of an audit of its activities in February 2001. As regards the statements made by the respondent’s officials at the court hearings, the court found that those statements had not been “dissemination of information” within the meaning of the civil legislation.

On 12 February and 17 December 2009 respectively, the Kyiv Administrative Court of Appeal and the Higher Administrative Court upheld the judgment of the Kagarlyk Court.

In the course of the proceedings the applicant amended her complaint on three occasions. According to the Government, she lodged a request for the adjournment of the proceedings for an unspecified period. The applicant stated that she had not sought adjournment of the proceedings.

B. The second set of proceedings

In February 2001 M., a tax officer, instituted criminal proceedings against the applicant for tax evasion. On 17 March 2004 the Kagarlyk Court discontinued those proceedings for lack of corpus delicti in the applicant’s actions.

In 2001 the applicant lodged with the prosecutors a criminal complaint against M. about his allegedly unlawful actions in the course of the criminal proceedings. There has been no final decision given on the applicant’s complaint so far.

THE LAW

I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS

The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the first set of proceedings had been incompatible with the “reasonable time” requirement. The Court finds that this complaint falls to be examined solely under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Government contested that argument.

The Court notes that the period to be taken into consideration began on 21 March 2001 and ended on 17 December 2009. Between 26 April 2001 and 6 September 2003 the proceedings were formally suspended. The Court would normally exclude such period from the overall length of proceedings. However, it notes that, although the proceedings concerning the commercial dispute ended on 28 December 2001, the Kagarlyk Court resumed its own proceedings only on 6 October 2003 (see paragraphs 7 and 9 above), that is, after one year and nine months, without any justification having been given for such a delay, even though the applicant asked for the proceedings to be resumed in January 2002. Therefore, although the proceedings formally lasted for about six years and three months before three judicial instances, the Court, in considering the reasonableness of their length, will take into account the above delay (see Karnaushenko v. Ukraine, no. 23853/02, § 58, 30 November 2006).

A. Admissibility

The Court notes that it has not been disputed by the parties that Article 6 § 1 of the Convention is applicable to the proceedings under its civil head and sees no reasons to hold otherwise, in particular, given that the proceedings partly concerned the applicant’s right to reputation and the courts examined that part of the case on the merits (see paragraphs 6 and 11 above).

The Court further notes that the complaint is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

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).

Turning to the facts of the case, the Court notes that the complexity of the case and the applicant’s conduct alone cannot explain the overall length of the proceedings. On the other hand, it notes that the delay in resuming the proceedings by the Kagarlyk Court (see paragraphs 7, 9 and 18 above) and the lengthy examination of the case by the Higher Administrative Court (see paragraph 10 above) were attributable to the domestic courts. It concludes, therefore, that the responsibility for the protracted length of the proceedings rested with the State.

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for instance, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006; and Golovko v. Ukraine, no. 39161/02, § 65, 1 February 2007).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.

II. REMAINING COMPLAINTS

The applicant also complained under Articles 6 § 1 and 13 of the Convention of lengthy examination of her criminal complaint against M.

Having carefully examined the applicant’s submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that 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, costs and expenses

The applicant claimed EUR 7,000 in compensation for non-pecuniary damage. The Government contested that amount.

The Court considers that the applicant must have sustained non-pecuniary damage on the basis of the violation found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 1,600.

B. 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 applicant’s complaint under Article 6 § 1 of the Convention about the length of the first set of proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

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 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnias at the rate applicable at the date of settlement;

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

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Rait Maruste
Deputy Registrar President