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FIFTH
SECTION
CASE OF YAKUBOVYCH v. UKRAINE
(Application
no. 29025/05)
JUDGMENT
STRASBOURG
30
July 2009
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 Yakubovych 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,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Stanislav
Shevchuk, ad
hoc judge,
and
Stephen Phillips, Deputy Section
Registrar.
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 29025/05) 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, Mr Oleksiy Volodymyrovych Yakubovych (“the
applicant”), on 27 July 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Messrs Yuriy Zaytsev and Nazar Kulchitskyy.
- On
14 January 2008 the
Court decided to give notice of the application to the Government. It
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 1954 and lives in the Rivne Region.
1. First set of proceedings against the Vysotskyy
(Zlagoda) company
- On
13 March 1996 the applicant instituted proceedings in the Sarny Court
against a private company, Vysotskyy, for non-fulfilment of its
contractual obligations, under which it should have provided the
applicant with agricultural products.
- On
1 July 1997 the Sarny Court left the applicant’s complaint
without consideration, holding that it fell within the jurisdiction
of the commercial courts.
- On
28 July 1997 the Rivne Regional Court quashed that ruling and
remitted the case for a fresh consideration.
- On
22 December 1997 the Sarny Court rejected the applicant’s
claims as unsubstantiated.
- On
26 January 1998 the Rivne Court quashed that decision and remitted
the case for a fresh consideration.
- On
19 May 1998 the Sarny Court found in part for the applicant.
- On
13 July 1998 the Rivne Court upheld that decision.
- On
23 December 1998 the Presidium of the Rivne Court, following an
objection (протест)
lodged by its President, quashed the decisions of the lower courts
and remitted the case to the Sarny Court for a fresh consideration.
- On
an unspecified date the Vysotskyy company lodged a counterclaim with
that court seeking the annulment of the contract.
After
December 1998 the case was reconsidered by the courts at three levels
of jurisdiction on four occasions because the courts of first
instance and appeal had committed factual and legal errors in their
decisions.
- On
3 March 2003 the Dubrovytsya Town Court allowed the applicant’s
claim in part and ordered the successor of the Vysotskyy company,
Zlagoda, to transfer thirty-three tons of potatoes, worth 15,196
Ukrainian hryvnas (UAH),
and eight tons of wheat, worth UAH 2,598,
to the applicant. It also ordered the applicant to return 3,855 kg of
meat, worth UAH 11,133,
to Zlagoda.
- On
27 June 2003 the Rivne Regional Court of Appeal upheld that judgment.
On 4 February 2005 the Supreme Court rejected the applicant’s
appeal in cassation.
- In
the course of the proceedings twenty-seven hearings were adjourned,
two of which were adjourned due to the applicant’s failure to
attend and the remaining twenty-five due to the need to call
witnesses or due to their or their respondent’s failure to
attend.
2. Enforcement of the judgment of 2 March 2003
- On
an unspecified date the Bailiffs started enforcement proceedings in
respect of the judgment of 3 March 2003.
- On
11 January 2007 the Rivne Court modified the procedure of
enforcement, ordering the Zlagoda company to pay the applicant
UAH 17,794
for the products due to him under the judgment of 3 March 2003.
- On
7 February 2007 the Dubrovytsya Court, following a request by the
Zlagoda company to modify the procedure of enforcement of the
judgment of 3 March 2003, ordered cross-cancellation of the debts
under that judgment in the amount of UAH 11,133
and ruled that Zlagoda was to pay the applicant UAH 6,661.
The ruling of 7 February 2007 was not appealed against and became
final.
- On
21 February 2007 the judgment of 3 March 2003 was enforced in full.
3. Second set of proceedings against the Zlagoda
company
- In
March 2007 the applicant instituted proceedings against the Zlagoda
company, seeking compensation for the difference between the award
paid and the in market prices of the products due to him under the
judgment of 3 March 2003.
- On
5 June 2007 the Dubrovytsya Court rejected the applicant’s
claims as unsubstantiated.
- On
18 July 2007 the Rivne Court quashed that decision and discontinued
the proceedings in the case, holding that the issue had been settled
by the final judgment of 3 March 2003.
- On
27 August 2008 the Supreme Court quashed the decision of 18 July
2007 and remitted the case for a fresh consideration to the Rivne
Court, before which it is still pending.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE FIRST SET OF
PROCEEDINGS
- The
applicant alleged that the length of the first 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...”
A. Admissibility
- The
Court considers 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. Period to be taken into consideration
- The
Government submitted that a part of the proceedings was outside the
Court’s competence ratione temporis.
- The
Court observes that the overall duration of the proceedings,
including the enforcement stage and excluding the interval between 13
July 1998 and 23 December 1998, when no proceedings were pending, was
more than ten years (see Yemanakova v. Russia, no. 60408/00,
§ 41, 23 September 2004, and Efimenko v. Ukraine,
no. 55870/00, § 51, 18 July 2006). The period to
be taken into consideration ratione temporis began on 11
September 1997, when the recognition by Ukraine of the right of
individual petition took effect, and ended on 21 February 2007, and
thus lasted for about nine years and two months. In assessing the
reasonableness of the time that elapsed after 11 September 1997,
the Court will take into account the state of proceedings before that
day.
2. Reasonableness of the length of the proceedings
- The
Government submitted that the length of the proceedings could be
explained by the complexity of the subject matter of the case and the
conduct of the applicant, who had challenged the court decisions on a
number of occasions
- 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 notes that the dispute at hand concerned an issue of fulfilment
of obligations under an ordinary sales contract. It involved two
parties and was not complicated from either a factual or a legal
point of view.
- However,
it took the courts of three levels of jurisdiction about seven years
and four months to finally determine that dispute. Although some of
the delays in the proceedings could be attributed to the applicant,
their excessive duration was largely caused by the repetitive
reconsiderations of the case. Such reconsiderations were ordered by
the higher courts because of errors committed by the lower courts. In
this context, the Court reiterates its position that repetitive
remittals of a case within one set of proceedings on account of
factual or legal errors discloses a serious deficiency in the
judicial system (see Wierciszewska v. Poland, no. 41431/98,
§ 46, 25 November 2003).
- 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, among many other authorities, Mikhaylenko v.
Ukraine, no. 18389/03, §§ 28-32, 15 May 2008, and
Lyutov v. Ukraine, no. 32038/04, §§
34-36, 11 December 2008).
- Having
examined all the materials submitted to it in view of the above
considerations, 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.
- There
has accordingly been a violation of Article 6 § 1 of
the Convention on account of the excessive length of the court
proceedings.
- The
Court does not find it necessary in the circumstances to assess the
reasonableness of the length of the same proceedings including the
enforcement stage.
II. OTHER COMPLAINTS
- The
applicant also complained under Article 6 § 1 of the Convention
that the first set of proceedings were unfair and about their
outcome. He also complained under Article 13 of the Convention that
the amount fixed to be paid to him pursuant to the ruling of 7
February 2007 was unreasonably low. The applicant complained of a
violation of Article 1 of Protocol No.1 on account of the length of
the second set of proceedings.
- In
the light of the materials in its possession, the Court finds that
the applicant’s complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application must be declared
inadmissible as 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 EUR 20,000 in respect of pecuniary and
non pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects that claim.
On the other hand, ruling on an equitable basis, it awards the
applicant EUR 2,400 for non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses;
therefore, the Court makes no award.
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
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 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 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 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
