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FIFTH
SECTION
CASE OF PRASOV v. UKRAINE
(Application
no. 27685/04)
JUDGMENT
STRASBOURG
3 March
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Prasov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 8 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27685/04) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by
Mr Aleksandr Nikolayevich Prasov.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
13 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
- The
applicant, Mr Aleksandr Nikolayevich Prasov, is a Ukrainian national
who was born in 1949 and lives in Zaporizhzhya.
- The
applicant is a co-founder and former managing director of a private
limited liability company, P. At a meeting of 18 December 1999,
the company’s shareholders struck him off the list of the
company’s shareholders and re-distributed his shares that,
according to applicant, were worth UAH 162,962 (EUR 26,074)
on 14 August 2003.
A. First set of proceedings
- On
30 December 1999 the applicant lodged a complaint with the Leninsky
Court of Zaporizhzhya (“the Leninsky
Court”) seeking to set aside the
decision of 18 December 1999.
- On
17 November 2000 the court, relying on the provisions of the Code of
Civil Procedure 1963 that, among other things, governed examination
of complaints against officials, allowed his complaint in part.
- On
26 December 2000 the Zaporizhzhya Regional Court, following the
respondent’s appeal, quashed that judgment and remitted the
case to the Leninsky Court which, in a judgment of 25 May 2001, found
for the applicant.
- On
19 September 2001 the Zaporizhzhya Regional Court of Appeal (“the
Court of Appeal”) quashed that judgment and ordered a fresh
consideration by the first instance court. The applicant filed an
appeal in cassation which was dismissed by the Supreme Court on 16
November 2001.
- In
May 2002 the Court of Appeal transferred the case to another District
Court and in July 2004 it sent it back to the Leninsky Court.
- On
3 March 2005 the Leninsky Court found in part for him.
- On
30 May 2005 the Court of Appeal quashed that judgment and left
the applicant’s complaint without consideration stating that
the case fell to be dealt with in civil contentious proceedings. The
applicant did not appeal in cassation.
B. Second set of proceedings
- In
July 2005 the applicant instituted civil contentious proceedings
before the Leninsky Court with the same object as the first set of
proceedings.
- On
29 March 2006 the court rejected the applicant’s claim as
unsubstantiated.
- On
23 May 2006 the Court of Appeal upheld that judgment. The court in
particular found that the claim was submitted out of the statutory
time limit of three years. The applicant appealed in cassation.
- On
23 October 2007 the Supreme Court, according to the Judicial System
Act (as amended on 22 February 2007), transferred the appeal to the
Odesa Regional Court of Appeal.
- On
28 November 2007 the Odesa Regional Court of Appeal, having found
that the appeal was outside its jurisdiction, transferred it to the
Higher Commercial Court which, on 26 March 2008, dismissed the
appeal. The applicant again appealed in cassation to the Supreme
Court.
- By
the final ruling of 12 June 2008, the Supreme Court rejected the
appeal in cassation.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the length of the first set of proceedings was not
reasonable. 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:
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 ...”
- The
period to be taken into consideration began on 30 December 1999 and
ended on 30 May 2005 in the judgment of the Court of Appeal. It thus
lasted approximately five years and five months for three levels of
jurisdiction.
A. Admissibility
- The
Government contended that the present dispute did not concern the
applicant’s civil rights and obligations and therefore Article
6 § 1 of the Convention was not applicable. They
further submitted that the applicant had not exhausted the domestic
remedies as his claim was not heard on its merits.
- The
applicant disagreed.
- The Court observes that the action the applicant
intended to initiate had “pecuniary” consequences for
him. Accordingly, the proceedings in question concerned the
determination of his civil rights within the meaning of Article 6 §
1 of the Convention (see, Editions Périscope v. France,
26 March 1992, § 40, Series A no. 234-B).
- As
to the non-exhaustion of domestic remedies objection, the Court notes
that it concerns the merits of the first set of proceedings rather
than their length. Accordingly, it dismisses the Government’s
objection.
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government maintained that the applicant was responsible for the
protracted length of the proceedings as he had chosen improper
judicial jurisdiction.
- The
applicant disagreed.
- 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 present case, the Court notes that the
applicant’s property rights were at stake and the matter was,
therefore, of some importance to him.
- The
Court further notes that the courts of three instances needed more
than five years to decide, having examined the applicant’s
action three times, that they were not competent to deal with the
applicant’s case which led to the applicant’s lodging his
claim out of the statutory time limit in the second set of
proceedings (see paragraphs 12 and 15 above).
- Insofar as the remittals of the applicant’s case
for re-examination are concerned, the Court recalls that since the
remittal of cases is usually ordered as a result of errors committed
by lower courts, the repetition of such orders within one set of
proceedings discloses a serious deficiency in the judicial system
(see Wierciszewska v. Poland, no. 41431/98, § 46,
25 November 2003). The Court also
finds that the second examination of the case by the first instance
court lasted three years. Moreover, it was coupled with two
reassignments of the case-jurisdiction (see paragraph 10 above).
- In
the light of these circumstances, 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 of the
Convention.
II. OTHER COMPLAINTS
- The
applicant further complained under Articles 1, 6 § 1 and 13 of
the Convention about unfairness and outcome of the first set of
proceedings. He also complained about unreasonable length of the
first and second sets of proceedings relying respectively on Articles
1 and 6 § 1 of the Convention. Finally, relying on Article 1 of
Protocol No.1, he complained about the domestic court’s failure
to protect his property rights in the first set of proceedings.
- 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 (a) 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 EUR 60,917 in respect of pecuniary and EUR 100,000
in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non-pecuniary damage as regards the excessive length of the
proceedings in his case. Making its assessment on an equitable basis
and having regard to the particular circumstances of the case, the
Court awards the applicant EUR 1,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 320 for the costs and expenses incurred
before the domestic courts.
-
The Government contested 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
as there is no indication that they were necessarily incurred.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
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 in respect of the length of the first
set of proceedings;
- Holds
that there is no need to examine the complaint under Article 13 of
the Convention;
- Holds
(a)
that the respondent State is to pay the applicant, within three
months, EUR 1,000 (one thousand euros) in respect of non-pecuniary
damage, 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 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 3 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
