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FIFTH
SECTION
CASE OF PREKRASNYY v. UKRAINE
(Application
no. 33697/04)
JUDGMENT
STRASBOURG
18 February 2010
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 Prekrasnyy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33697/04) 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 Pyotr Fedotovich Prekrasnyy (“the
applicant”), on 5 September 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
19 January 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1936 and lives in the town of Yalta, Ukraine.
- The applicant was the owner of several underground
garages. On 13 September 1995 the applicant and the private
company OJSC Alima-K (“the company”) signed a joint
venture contract (“the contract”) under which the company
took on an obligation to construct two office buildings above the
garages (“the disputed property”).
- On 25 September 1998 the applicant instituted
proceedings against the company in the Yalta Court, alleging that it
had failed to comply with the terms of the contract. The applicant
requested that the court declare the contract void. He also sought a
ruling requiring the company to destroy the unfinished buildings.
Lastly, he claimed compensation for pecuniary and non-pecuniary
damage.
- On 7 June 1999 the Yalta Court allowed the applicant’s
claims in part. The judgment became final.
- On 22 October 1999, following an objection (протест)
by the Prosecutor of the Autonomous Republic of Crimea, the Presidium
of the Supreme Court of the Autonomous Republic of Crimea quashed the
judgment of 7 June 1999 and remitted the case to the first-instance
court for fresh consideration.
- On
11 December 2000 the Yalta Court found against the applicant. On 15
December 2000 the Yalta Court adopted an additional judgment in the
case. These judgments became final.
- On
19 February 2001 the applicant lodged a new claim against the company
seeking a ruling requiring the latter not to
hinder him in use of the garages.
- On
20 March 2001 the company instituted proceedings against the
applicant seeking division of the disputed property and claiming
ownership rights to half of it. The company also claimed compensation
for pecuniary and non-pecuniary damage.
- On
20 April 2001, following an objection (protest) by the Deputy
Prosecutor of the Autonomous Republic of Crimea, the Presidium of the
Supreme Court of the Autonomous Republic of Crimea quashed the
judgment of the Yalta Court of 11 December 2000 and the additional
judgment of 15 December 2000 and remitted the case to the
first-instance court for fresh consideration.
- On
30 July 2001 the Yalta Court joined the proceedings.
- On
28 May 2002 the Yalta Court dismissed the applicant’s claims
and allowed the company’s claims in part. On 16 September 2002
the Court of Appeal of the Autonomous Republic of Crimea upheld that
judgment.
- On
19 May 2004 the Supreme Court quashed the decisions of the lower
courts and remitted the case to the first-instance court for fresh
consideration.
- By
a judgment of 31 January 2006 the Yalta Court found against the
applicant. By the same judgment the court partly allowed the
company’s claims. The court, inter alia, recognized the
company’s right to use a half of the disputed property.
- On
15 November 2006 the Court of Appeal of the Autonomous Republic of
Crimea remitted the case to the first-instance court since the latter
failed to examine all the claims lodged by the parties to the
proceedings.
- By
additional judgment of 26 January 2007 the Yalta Court examined the
remainder of the claims. The court partly allowed the company’s
claim for ownership and rejected the remainder of the applicant’s
claim in respect of pecuniary damage.
- On
24 April 2007 the Court of Appeal of the Autonomous Republic of
Crimea upheld the judgment of 31 January 2006. By the same ruling the
court of appeal dismissed the company’s claim for ownership and
upheld the remainder of the additional judgment of 26 January 2007.
- The
applicant appealed in cassation before the Supreme Court. On 25 March
2009 the Supreme Court quashed the part of the judgment of 31 January
2006 concerning the company’s right to use a half of the
disputed property and upheld the remainder of the decisions of the
lower courts.
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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 25 September 1998 and
ended on 25 March 2009. However, no proceedings were pending between
7 June and 22 October 1999 and between 15 December 2000 and
20 April 2001 after the respective judgments became final
and until the original main proceedings were resumed after the
quashing of these judgments. Therefore, the overall duration of the
proceedings was about nine years and nine months. During this period
the case was considered by the courts at three levels of
jurisdiction.
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
- 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 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 about the outcome of the proceedings. In particular, he
alleged that the domestic courts failed to allow his claims. He
further invoked Article 41 and Article 1 of Protocol No. 1 referring
to the facts of the case.
- 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 484,626
Ukrainian hryvnias in respect of
pecuniary damage. He further alleged that he had sustained
non-pecuniary damage; he left this matter to the Court’s
discretion.
-
The Government contested the claim in respect of pecuniary damage.
They further observed that the amount of compensation for
non-pecuniary damage should be determined in view of the Court’s
case-law.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, ruling on an equitable basis, it awards the applicant
2,400 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no claim for costs and expenses. Therefore, the Court
makes no award 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
about 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 on account of the excessive length of
the proceedings;
- 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 2,400 (two
thousand four hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State 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 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
