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FIFTH
SECTION
CASE OF
LOBATSKA v. UKRAINE
(Application
no. 44674/05)
JUDGMENT
STRASBOURG
5 April
2012
This
judgment is final but it may be subject to editorial revision.
In the case of Lobatska v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 13 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 44674/05) 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, Mrs Valentyna Ivanivna Lobatska (“the
applicant”), on 22 November 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- On
12 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 was born in 1960 and lives in Donetsk. She was a co-owner
of the Yuvileynyy Trade Centre.
A. Proceedings concerning the annulment of the State
registration of the Yuvileynyy Trade Centre
- On
9 June 1999 the Petrovskyy District Council annulled the State
registration of the trade centre at its director’s request,
accompanied by a decision of the assembly of owners to liquidate the
trade centre.
- On
an unspecified date the applicant challenged the decision of the
Petrovskyy District Council before the Petrovskyy District Court of
Donetsk, alleging that the owners’ assembly was not competent
to decide on the trade centre’s liquidation because it had not
been quorate as, according to the applicant, only three of the
sixty-six owners had taken part in the assembly. It is unknown if the
applicant was among these three present.
- On
an unspecified date the Petrovskyy Court suspended the proceedings
pending the outcome of the applicant’s case for the annulment
of sale contracts (see below). The applicant did not provide any
information about the progress or the outcome of these proceedings.
B. Proceedings for the annulment of sale contracts
- By
decisions of 25 September and 30 October 1998 and 27 February 1999,
the assembly of the owners of the Yuvileynyy Trade Centre, including
the applicant, decided to dispose of the property belonging to the
trade centre.
- By
a decision of 11 March 1999, the assembly of owners dismissed Mrs G.
from her position as director of the trade centre.
- On
19 March and 14 April 1999 respectively Mrs G., acting on behalf of
the trade centre, sold its property to a private company, V., and a
private person, Mr M.
- On
5 May 1999 the Petrovskyy Court annulled the decision of 11 March
1999 and reinstated Mrs G. as director of the trade centre. No appeal
was lodged against that judgment and it became final.
- On
21 January 2000 the applicant instituted proceedings in the
Petrovskyy Court against the new owners of the property of the trade
centre and Mrs G., seeking annulment of the contracts pursuant to
which the property at issue had been sold. The applicant stated that
Mrs G. had not been authorised to sell the property, since she had
been dismissed from her position as director in March 1999. She
further stated that the assembly of owners had not been competent to
decide on that matter as it had not been quorate and that the
decisions could not form the basis for the contracts of sale at issue
because they did not contain essential terms for such contracts and
did not concern all the property sold in 1999. Lastly, the applicant
submitted that the price at which the property had been sold had been
much lower than its market price.
13 On
23 March 2000 the applicant lodged additional claims.
- On
5 June 2001 the court left the applicant’s complaint
unexamined.
- On
12 July 2001 the Donetsk Court of Appeal quashed that decision and
remitted the case to the first-instance court.
- On
30 May 2002 the Petrovskyy Court found against the applicant, holding
that the decision of 11 March 1999 had been annulled and thus Mrs G.
had had the right to sell the property of the trade centre. The court
further held that the disputed contracts had been concluded in
accordance with the law.
- On
12 August 2002 the Donetsk Regional Court of Appeal dismissed an
appeal by the applicant as unsubstantiated.
- On
4 March 2004 the Supreme Court, following an appeal in cassation by
the applicant, quashed the courts’ decisions and remitted the
case for fresh consideration. It held that the lower courts had
failed to establish whether the decisions of the assemblies of owners
of 30 October 1998 and 27 February 1999 had been adopted in
accordance with the law.
- On
21 January 2005 the Petrovskyy Court ruled against the applicant. It
held that the contracts had been concluded in accordance with the law
and that according to the relevant legislation an individual was not
empowered to challenge contracts concluded between legal entities.
The court further found that the applicant had failed to challenge
the decisions of 25 September and 30 October 1998 and 27
February 1999 in due time.
- On
31 May 2005 the Court of Appeal upheld that judgment.
- On
24 June 2005 the applicant lodged an appeal in cassation with the
Supreme Court.
- On
31 May 2007, according to the legislative amendments introduced on 22
February 2007, the Supreme Court transferred the applicant’s
appeal to the Kyiv Court of Appeal for consideration.
- On
29 August 2007 the Kyiv City Court of Appeal, sitting as a court of
cassation, dismissed the applicant’s appeal, finding that it
did not contain arguments capable of persuading that there had been
violations of substantial or procedural law.
- Of
about thirty-five hearings in the case eleven were adjourned due to
the respondents’ failure to appear. Seven hearings scheduled
between April 2000 and June 2001 were adjourned at the applicant’s
or her lawyer’s request or because of their failure to appear.
On several occasions the applicant’s lawyer requested the
courts to expedite the proceedings.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE SECOND SET OF
PROCEEDINGS
- The
applicant complained that the second 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 ...”
- The
Government disagreed and maintained that the protracted length of the
proceedings was mainly due to the conduct of the applicant, who had
modified her claims, lodged appeals and requested adjournments, and
to that of the respondents, who had failed to appear before the
courts on eleven occasions. The Government stated that the subject
matter of the case was complex and all the adjournments ordered by
the courts of their own motion were in the interest of justice.
- The
Court notes that the second set of proceedings began on 21 January
2000 and ended on 29 August 2007. The period to be taken into
consideration therefore was about seven years and seven months 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
29. 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 applicant’s case was of no particular
factual or legal complexity, some of the applicant’s claims
having been time-barred.
- Although
the applicant contributed to the overall duration of the proceedings
by failing to attend or requesting adjournment of some of the
hearings, the Court is of the opinion that the protracted
length of the proceedings was mainly caused by the domestic
authorities. In particular, the Court notes that the majority of the
hearings were adjourned due to the respondents’ failure to
appear. In this context, the Court reiterates that it is the role of
the domestic courts to manage their proceedings so that they are
expeditious and effective (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 183, ECHR 2006 V). In particular,
there is nothing to suggest that the courts could not have considered
the case in the respondents’ absence (see Golovko v.
Ukraine, no. 39161/02, § 59, 1 February 2007).
- The
Court further notes that the Government did not put forward any
plausible justification for the delay of over two years in the
proceedings between 24 June 2005 and 29 August 2007. During that
period the applicant’s second cassation appeal was awaiting
examination after the case had been dealt with in three rounds of
first and appeal proceedings and one round of cassation proceedings,
the latter having lasted for about one year and seven months (see
paragraphs 17 and 18 above). Eventually, no re-examination of the
case in cassation was found to be necessary.
- Regard
being had to all the circumstances of the case, the Court is of the
view that the primary responsibility for the delays in the second set
of proceedings rests with the courts. The Court considers that the
length of the second set of proceedings was excessive and failed to
meet the “reasonable time” requirement.
- There
has accordingly been a breach of the reasonable time requirement of
Article 6 § 1 of the Convention.
II. OTHER COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention about
the unfavourable outcome of the second set of proceedings and the
length of the first set of proceedings. She also complained under
Article 1 of Protocol No. 1 on account of the outcome of the second
set of proceedings.
- The
Court notes that the applicant failed to substantiate her complaint
about the length of the first set of proceedings.
- As
regards the remainder of the applicant’s complaints, in the
light of all the materials in its possession, the Court finds that
they 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 pursuant to Article 35 §§ 1, 3 (a) and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicant claimed EUR 9,666.97 in respect of pecuniary damage and EUR
10,000 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.
The Court, making its assessment on an equitable basis, as required
by Article 41 of the Convention, awards the applicant EUR 1,200
in respect of 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 applicant’s complaint under
Article 6 § 1 of the Convention concerning the excessive length
of the second 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,
EUR 1,200 (one thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
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 5 April 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
