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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
