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Cite as: [2011] ECHR 28

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FIFTH SECTION

CASE OF SOKOLOVSKIY v. UKRAINE

(Application no. 28660/04)

JUDGMENT

STRASBOURG

13 January 2011

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

In the case of Sokolovskiy v. Ukraine,

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

Mark Villiger, President,
Karel Jungwiert,
Isabelle Berro-Lefèvre, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 7 December 2010,

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

PROCEDURE

The case originated in an application (no. 28660/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Nikolay Akimovich Sokolovskiy (“the applicant”), on 12 July 2004. The applicant was represented by Mrs Anna Sazhko.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zytsev.

On 10 November 2008 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 1940 and lives in the city of Kharkiv.

In 1989 a family consisting of husband and wife, S.N. and P.V., respectively, and P.O., the daughter of P.V., was granted the tenancy of a publicly-owned apartment. In 1995 S.N. and P.V. divorced.

In November 1996 P.V. and P.O. instituted civil proceedings in the Kyivsky District Court of Kharkiv (“the District Court”) against S.N., seeking to declare that the latter was no longer entitled to live in the apartment in question. S.N., in turn, lodged a counterclaim, seeking to have his property right over the disputed apartment acknowledged.

On 18 March 1997 the court allowed the claim of P.V. and P.O.

In March 1998, following privatisation procedures, a “property certificate” (приватизаційний сертифікат) was issued to P.V. and P.O. for the apartment.

However, on 14 July 2000, following an application for supervisory review (protest), the Kharkiv Regional Court (after June 2001 the Kharkiv Regional Court of Appeal; “the Court of Appeal”) set aside the judgment of 18 March 1997 and remitted the case for fresh consideration.

On 16 December 2000 P.V. and P.O. sold the apartment to the applicant.

On an unspecified date in November or December 2001, S.N. lodged additional claims, seeking to have the apartment’s sales contract declared null and void and to have the applicant evicted. According to a copy of the court records provided by the applicant, he has been participating in the proceedings as a third party since 16 January 2002. On the same date the District Court attached the disputed apartment. Subsequently, on a number of occasions, the applicant requested the court to lift its attachment but this was to no avail.

On 2 June 2002 the applicant lodged a counterclaim against S.N., seeking a declaration that the contract was valid and that he was a bona fide purchaser. On 5 June 2002 the District Court ruled to consider this claim at the same time as other claims lodged by S.N.

On 17 March 2004 the District Court allowed the claims of P.V., P.O. and the applicant, and dismissed the claims of S.N. In particular, it found that S.N. was no longer entitled to live at the disputed apartment, declared the sales contract valid and acknowledged that the applicant was a bona fide purchaser. S.N. appealed.

Between June 2004 and April 2005 the courts examined the admissibility of S.N.’s appeal. On 7 April 2005 the Court of Appeal extended the time-limit during which the parties could lodge an appeal against the judgment of 17 March 2004. According to the applicant, the courts did not inform him about the hearings on the appeal and the decisions were not delivered to him in good time.

On 26 May 2005 the Court of Appeal quashed the judgment of 17 March 2004 and remitted the case for fresh consideration. On 6 July 2007 the Lugansk Regional Court of Appeal, sitting as a court of cassation, dismissed the appeals in cassation of P.V., P.O. and the applicant, and upheld the decision of 26 May 2005.

On 20 November 2007 the District Court took over the case.

On 10 December 2007 S.N. lodged a request to transmit the case to another court. On 26 December 2007 the District Court allowed his request. On 7 February 2008 the Court of Appeal quashed the ruling of 10 December 2007.

The proceedings are still pending before the first-instance court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

A. Admissibility

The Court notes that this 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

1. The parties’ submissions

The Government alleged that the period to be taken into consideration should be calculated from 2 June 2002 when the applicant lodged his counterclaim. The Government further contested the applicant’s submissions, stating that there were no significant periods of inactivity attributable to the State. They maintained that the case was complex and that the judicial authorities had acted with due diligence. According to the Government, the parties had been responsible for several delays. The Government, therefore, maintained that the length of proceedings in the applicant’s case had not been unreasonable.

The applicant submitted that he joined the proceedings on 16 January 2002. He maintained his complaint.

2. Period to be taken into consideration

The parties disagreed as to the date from which the period to be taken into consideration should be calculated. The Court notes that, according to the materials in the case file, the applicant joined the proceedings on 16 January 2002. The proceedings have not yet ended. They have thus lasted about eight years and three months for three levels of jurisdiction.

3. Reasonableness of the length of the proceedings before the domestic courts

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).

Although the domestic courts were required to examine a certain amount of documentary evidence, the issues before them were not of such a nature as to necessitate prolonged consideration of the applicant’s case. Therefore, the Court concludes that the subject matter of the litigation at issue cannot be considered particularly complex.

The Court notes that the complexity of the case and the applicant’s conduct cannot explain the overall length of the proceedings at issue in the present case.

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 Frydlender, cited above).

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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant further complained under Article 6 § 1 of the Convention that the domestic courts had not informed him about the hearings on the matter of the admissibility of S.N.’s appeal and, as the decisions taken as a result of these hearings had not been delivered to him in good time, he had had no opportunity to appeal against them. He submitted that the courts had impeded his access to the case file and had not properly replied to his complaints. The applicant further complained about the courts’ refusal to lift the attachment from the disputed apartment. In the light of this, he concluded that the courts were prejudiced against him and the proceedings were therefore unfair.

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

The applicant claimed 1,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested the claim.

The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court considers that it should award the full sum claimed.

B. Costs and expenses

The applicant also claimed EUR 60 for the cost of mailing his letters to the Court.

The Government contested the claim. The applicant provided receipts amounting to 226.04 Ukrainian hryvnias (about EUR 21) in support of this claim.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 21 under this head.

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 complaint under Article 6 § 1 concerning the excessive length of the 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 of the present judgment, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage as well as EUR 21 (twenty-one euros) for costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable on 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 amounts 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 13 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Mark Villiger
Deputy Registrar President