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FIFTH
SECTION
CASE OF TVERDOKHLEBOV v. UKRAINE
(Application
no. 27341/05)
JUDGMENT
STRASBOURG
19
November 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 Tverdokhlebov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Stephen Phillips, Deputy Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27341/05) 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
Russian national, Mr Vladimir Nikolayevich Tverdokhlebov (“the
applicant”), on 29 June 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
15 October 2008 the Court
decided to communicate the complaint concerning the length of the
civil proceedings to the Ukrainian Government. It also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 3).
- On
21 October 2008 the Government of the Russian Federation were asked
whether they intended to intervene in the proceedings as a third
party (Article 36 § 1 and Rule 44).
- On
17 December 2008 the Government of the Russian Federation informed
the Court that they did not wish to exercise their right to intervene
in the proceedings as a third party.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1961 and lived in Gukovo. In
December 2007 the applicant died and his sister, Mrs Irina
Nikolayevna Kulikova, indicated that she wished to pursue the case.
- On 13 February 1997 the applicant was apprehended at
the Chervonopartizanskyy border crossing point on suspicion of drug
trafficking. On the same date the applicant’s car, which he had
been driving at the time, was seized together with his belongings,
documents and money which were in it. The customs officers refused to
compile an inventory of objects seized from the applicant.
Subsequently, the Customs Service transferred the car to a private
company called Forum for storage.
- On 26 June 1997 the Sverdlovsk Court sentenced the
applicant to five years’ imprisonment for drug trafficking and
confiscated all of his property.
- On 8 October 1997 the Lugansk Regional Court modified
that judgment, sentencing the applicant to five years’
imprisonment, suspended, without confiscation.
- On 5 November 1997 the applicant approached Forum to
ask for the return of his car. When the car was returned, the
applicant noted that it had been seriously damaged and lacked several
parts, the documents and belongings had been torn up and his money
had disappeared. According to the company, the Customs Service had
transferred the car in that condition on 20 February 1997.
- On 4 January 1998 the applicant instituted proceedings
in the Sverdlovsk Court against the Sverdlovsk Customs Service
seeking compensation for pecuniary and non-pecuniary damage and
stating that the defendant had failed to comply with its obligation
to keep his property undamaged and without loss.
- On 26 March 1998 the court partially allowed the
applicant’s claims and awarded him part of the compensation
claimed.
- On 28 May 1998 the Lugansk Regional Court quashed that
judgment and remitted the case for fresh consideration to the same
court.
- On 9 November 1998 the Sverdlovsk Court rejected the
applicant’s claims as unsubstantiated.
- On 19 February 1999 the prosecutor’s office
initiated criminal proceedings against two customs officers, Mr V.
and Mr C., following a request from the applicant in which he alleged
that these persons were responsible for the damage to his car and
belongings.
- On 15 September 1999 the Presidium of the Lugansk
Regional Court quashed the judgment of 9 November 1998 at the request
of the prosecutor’s office and remitted the case for fresh
consideration to the first-instance court.
- On 16 February 2000 the Sverdlovsk Court suspended the
civil proceedings pending the outcome of the criminal proceedings
against Mr V. and Mr C.
- The criminal investigation in the criminal case
against Mr V. and Mr C. is still pending.
- On an unspecified date following the applicant’s
death, his mother, Mrs Nasima Mullakhmetovna Tverdokhlebova, and
daughter, Ms Mariya Vladimirovna Tverdokhlebova, joined the civil
proceedings as the applicant’s successors. They are represented
before the domestic court by Mrs Irina Vladimirovna Kulikova, the
applicant’s sister.
- According to Mrs Kulikova, in May 2009 the hearings in
the civil case in question resumed and the case is currently pending
before the first instance court.
THE LAW
I. PRELIMINARY OBSERVATION
- The applicant died in December 2007, while the case
was pending before the Court (see paragraph 4 above). It has not been
disputed that the applicant’s sister is entitled to pursue the
application on his behalf and the Court sees no reason to hold
otherwise. However, reference will still be made to the applicant
throughout the ensuing text.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention. The applicant
also invoked Article 13 of the Convention. In so far as they are
relevant, the provisions invoked read 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...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court, master of the characteristic to be given in law to the facts
of a case, finds that the applicant’s complaint falls to be
considered solely under Article 6 § 1 of the Convention.
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
domestic remedies because he had not appealed against the decision of
16 February 2000.
- The
Court reiterates that the purpose of Article 35 § 1 of the
Convention is to afford the Contracting States the opportunity to
prevent or put right the violations alleged against them before those
allegations are submitted to the Court. However, the only remedies to
be exhausted are those which are effective. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one, available in theory and in practice at
the relevant time (see Khokhlich v. Ukraine, no.
41707/98, § 149, judgment of 29 April
2003).
- Turning to the circumstances of the present case, the
Court notes that on 16 February 2000 the civil proceedings were
suspended pending the outcome of the criminal proceedings, which are
decisive for the applicant’s civil claims. The Court is not
convinced that lodging an appeal against the decision of 16 February
2000 would have accelerated the criminal proceedings and,
consequently, unblocked the civil proceedings at issue.
- In
these circumstances, the Court concludes that the applicant was not
required to pursue the remedy invoked by the Government and has
therefore complied with the requirements of Article 35 § 1.
Accordingly, it dismisses the Government’s objection.
- 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
- The
Government submitted that the period to be taken into consideration
had lasted from July 1999 to February 2000 and the length of the
civil proceedings could not be considered unreasonable. In their
view, the applicant contributed to the length of the proceedings by
lodging two cassation appeals. The Government further maintained that
the case was complex and there were no substantial delays
attributable to the domestic authorities.
- 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 proceedings in question have lasted since
4 January 1998 (excluding the interval between 9 November
1998 to 15 September 1999, when no
proceedings were pending) and have not yet ended. The period to be
taken into consideration has thus lasted for about ten years and ten
months to date.
- The
Court notes that the civil proceedings at issue were blocked for more
than nine years due to the failure of the domestic authorities to
conclude the criminal investigations, the findings of which are
decisive for the applicant’s civil claim. Therefore, the
responsibility for the protracted length of proceedings in the
present case rests with the domestic authorities.
- 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; Baglay v. Ukraine,
no. 22431/02, § 33, 8 November 2005 and Solaz v.
Ukraine, no. 35184/02, § 43, 12 June 2008).
- 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.
III. OTHER COMPLAINTS
- The applicant complained under Article 14 of the
Convention that he had been discriminated against during the court
proceedings on the basis of his nationality and financial situation.
The applicant also complained of a violation of Article
1 of Protocol No. 1 stating that the State was responsible for the
damage to his property.
- The
Court notes that the applicant did not raise his complaint under
Article 14 of the Convention before the domestic courts and the
proceedings in question are still pending. Therefore, this part of
the application must be declared inadmissible for non-exhaustion of
domestic remedies pursuant to Article 35 §§ 1 and 4 of the
Convention.
IV. 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 2,000,000
Russian roubles (RUB) in respect of non-pecuniary damage and RUB
10,000,000
and 12,049.6
Ukrainian hryvnias (UAH) in respect of 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. On
the other hand, the Court, making its assessment on an equitable
basis, as required by Article 41, awards the beneficiaries of the
applicant’s estate 4,000 euros (EUR) in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 2,055.6
and EUR 1,000 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.
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 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;
3. 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 beneficiaries of the applicant’s
estate, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 4,000 (four thousand 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 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
