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
1.  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.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  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
4.  The applicant, Mr Aleksandr Nikolayevich Prasov, is a Ukrainian national who was born in 1949 and lives in Zaporizhzhya.
5.  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
6.  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.
7.  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.
8.  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.
9.  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.
10.  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.
11.  On 3 March 2005 the Leninsky Court found in part for him.
12.  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
13.  In July 2005 the applicant instituted civil contentious proceedings before the Leninsky Court with the same object as the first set of proceedings.
14.  On 29 March 2006 the court rejected the applicant’s claim as unsubstantiated.
15.  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.
16.  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.
17.  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.
18.  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
19.  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 ...”
20.  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
21.  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.
22.  The applicant disagreed.
23.  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).
24.  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.
25.  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
26.  The Government maintained that the applicant was responsible for the protracted length of the proceedings as he had chosen improper judicial jurisdiction.
27.  The applicant disagreed.
28.  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).
29.  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.
30.  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).
31.  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).
32.  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.
33.  There has accordingly been a breach of Article 6 § 1 of the Convention.
II.  OTHER COMPLAINTS
34.  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.
35.  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.
36.  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
37.  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
38.  The applicant claimed EUR 60,917 in respect of pecuniary and EUR 100,000 in respect of non-pecuniary damage.
39.  The Government contested these claims.
40.  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
41.  The applicant also claimed EUR 320 for the costs and expenses incurred before the domestic courts.
42.   The Government contested this claim.
43.  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
1.  Declares the complaint concerning the excessive length of the first 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 in respect of the length of the first set of proceedings;

3.  Holds that there is no need to examine the complaint under Article 13 of the Convention;

4.  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;

5.  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