FIFTH SECTION

CASE OF LOBATSKA v. UKRAINE

(Application no. 44674/05)

JUDGMENT

STRASBOURG

5 April 2012

This judgment is final but it may be subject to editorial revision.
In the case of Lobatska v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mark Villiger, President,
	Ganna Yudkivska,
	André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 13 March 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 44674/05) 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, Mrs Valentyna Ivanivna Lobatska (“the applicant”), on 22 November 2005.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
3.  On 12 December 2007 the Court 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
4.  The applicant was born in 1960 and lives in Donetsk. She was a co-owner of the Yuvileynyy Trade Centre.
A.  Proceedings concerning the annulment of the State registration of the Yuvileynyy Trade Centre
5.  On 9 June 1999 the Petrovskyy District Council annulled the State registration of the trade centre at its director’s request, accompanied by a decision of the assembly of owners to liquidate the trade centre.
6.  On an unspecified date the applicant challenged the decision of the Petrovskyy District Council before the Petrovskyy District Court of Donetsk, alleging that the owners’ assembly was not competent to decide on the trade centre’s liquidation because it had not been quorate as, according to the applicant, only three of the sixty-six owners had taken part in the assembly. It is unknown if the applicant was among these three present.
7.  On an unspecified date the Petrovskyy Court suspended the proceedings pending the outcome of the applicant’s case for the annulment of sale contracts (see below). The applicant did not provide any information about the progress or the outcome of these proceedings.
B.  Proceedings for the annulment of sale contracts
8.  By decisions of 25 September and 30 October 1998 and 27 February 1999, the assembly of the owners of the Yuvileynyy Trade Centre, including the applicant, decided to dispose of the property belonging to the trade centre.
9.  By a decision of 11 March 1999, the assembly of owners dismissed Mrs G. from her position as director of the trade centre.
10.  On 19 March and 14 April 1999 respectively Mrs G., acting on behalf of the trade centre, sold its property to a private company, V., and a private person, Mr M.
11.  On 5 May 1999 the Petrovskyy Court annulled the decision of 11 March 1999 and reinstated Mrs G. as director of the trade centre. No appeal was lodged against that judgment and it became final.
12.  On 21 January 2000 the applicant instituted proceedings in the Petrovskyy Court against the new owners of the property of the trade centre and Mrs G., seeking annulment of the contracts pursuant to which the property at issue had been sold. The applicant stated that Mrs G. had not been authorised to sell the property, since she had been dismissed from her position as director in March 1999. She further stated that the assembly of owners had not been competent to decide on that matter as it had not been quorate and that the decisions could not form the basis for the contracts of sale at issue because they did not contain essential terms for such contracts and did not concern all the property sold in 1999. Lastly, the applicant submitted that the price at which the property had been sold had been much lower than its market price.
13  On 23 March 2000 the applicant lodged additional claims.
14.  On 5 June 2001 the court left the applicant’s complaint unexamined.
15.  On 12 July 2001 the Donetsk Court of Appeal quashed that decision and remitted the case to the first-instance court.
16.  On 30 May 2002 the Petrovskyy Court found against the applicant, holding that the decision of 11 March 1999 had been annulled and thus Mrs G. had had the right to sell the property of the trade centre. The court further held that the disputed contracts had been concluded in accordance with the law.
17.  On 12 August 2002 the Donetsk Regional Court of Appeal dismissed an appeal by the applicant as unsubstantiated.
18.  On 4 March 2004 the Supreme Court, following an appeal in cassation by the applicant, quashed the courts’ decisions and remitted the case for fresh consideration. It held that the lower courts had failed to establish whether the decisions of the assemblies of owners of 30 October 1998 and 27 February 1999 had been adopted in accordance with the law.
19.  On 21 January 2005 the Petrovskyy Court ruled against the applicant. It held that the contracts had been concluded in accordance with the law and that according to the relevant legislation an individual was not empowered to challenge contracts concluded between legal entities. The court further found that the applicant had failed to challenge the decisions of 25 September and 30 October 1998 and 27 February 1999 in due time.
20.  On 31 May 2005 the Court of Appeal upheld that judgment.
21.  On 24 June 2005 the applicant lodged an appeal in cassation with the Supreme Court.
22.  On 31 May 2007, according to the legislative amendments introduced on 22 February 2007, the Supreme Court transferred the applicant’s appeal to the Kyiv Court of Appeal for consideration.
23.  On 29 August 2007 the Kyiv City Court of Appeal, sitting as a court of cassation, dismissed the applicant’s appeal, finding that it did not contain arguments capable of persuading that there had been violations of substantial or procedural law.
24.  Of about thirty-five hearings in the case eleven were adjourned due to the respondents’ failure to appear. Seven hearings scheduled between April 2000 and June 2001 were adjourned at the applicant’s or her lawyer’s request or because of their failure to appear. On several occasions the applicant’s lawyer requested the courts to expedite the proceedings.
THE LAW
I.  COMPLAINT ABOUT THE LENGTH OF THE SECOND SET OF PROCEEDINGS
25.  The applicant complained that the second set of proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
26.  The Government disagreed and maintained that the protracted length of the proceedings was mainly due to the conduct of the applicant, who had modified her claims, lodged appeals and requested adjournments, and to that of the respondents, who had failed to appear before the courts on eleven occasions. The Government stated that the subject matter of the case was complex and all the adjournments ordered by the courts of their own motion were in the interest of justice.
27.  The Court notes that the second set of proceedings began on 21 January 2000 and ended on 29 August 2007. The period to be taken into consideration therefore was about seven years and seven months at three levels of jurisdiction.
A.  Admissibility
28.  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
29.  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).
30.  The Court notes that the applicant’s case was of no particular factual or legal complexity, some of the applicant’s claims having been time-barred.
31.  Although the applicant contributed to the overall duration of the proceedings by failing to attend or requesting adjournment of some of the hearings, the Court is of the opinion that the protracted length of the proceedings was mainly caused by the domestic authorities. In particular, the Court notes that the majority of the hearings were adjourned due to the respondents’ failure to appear. In this context, the Court reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006‑V). In particular, there is nothing to suggest that the courts could not have considered the case in the respondents’ absence (see Golovko v. Ukraine, no. 39161/02, § 59, 1 February 2007).
32.  The Court further notes that the Government did not put forward any plausible justification for the delay of over two years in the proceedings between 24 June 2005 and 29 August 2007. During that period the applicant’s second cassation appeal was awaiting examination after the case had been dealt with in three rounds of first and appeal proceedings and one round of cassation proceedings, the latter having lasted for about one year and seven months (see paragraphs 17 and 18 above). Eventually, no re-examination of the case in cassation was found to be necessary.
33.  Regard being had to all the circumstances of the case, the Court is of the view that the primary responsibility for the delays in the second set of proceedings rests with the courts. The Court considers that the length of the second set of proceedings was excessive and failed to meet the “reasonable time” requirement.
34.  There has accordingly been a breach of the reasonable time requirement of Article 6 § 1 of the Convention.
II.  OTHER COMPLAINTS
35.  The applicant complained under Article 6 § 1 of the Convention about the unfavourable outcome of the second set of proceedings and the length of the first set of proceedings. She also complained under Article 1 of Protocol No. 1 on account of the outcome of the second set of proceedings.
36.  The Court notes that the applicant failed to substantiate her complaint about the length of the first set of proceedings.
37.  As regards the remainder of the applicant’s complaints, in the light of all the materials in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
38.  It follows that this part of the application must be declared inadmissible pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
A.  Damage
39.  The applicant claimed EUR 9,666.97 in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.
40.  The Government contested these claims.
41.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 1,200 in respect of non-pecuniary damage.
B.  Costs and expenses
42.  The applicant did not submit any claims for costs and expenses; therefore the Court makes no award.
C.  Default interest
43.  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
1.  Declares the applicant’s complaint under Article 6 § 1 of the Convention concerning the excessive length of the second set of proceedings admissible and the remainder of the application inadmissible;

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

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into national currency 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips	Mark Villiger
Deputy Registrar	President