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FIFTH
SECTION
CASE OF SOKOR v. UKRAINE
(Application
no. 49009/07)
JUDGMENT
STRASBOURG
9 December
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Sokor v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 49009/07) 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, Ms Valentyna Ivanivna Sokor (“the applicant”),
on 26 October 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
19 October 2009 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 1955 and lives in Kyiv.
- Between
September 1999 and November 2000 she was a director of a local branch
of the U. private company (“the branch”). On 24 November
2000 the branch was liquidated. However, according to the applicant,
the local tax authorities continued referring to her as “the
director of the branch” in their fiscal documents, obliged her
to provide and sign certain documents on behalf of the branch and to
provide comments on the fiscal documents related to its activities.
A. The first set of proceedings
- On 21 March 2001 the applicant lodged an administrative
law complaint with the Kagarlyk Court challenging the lawfulness of
the actions of the tax authorities. In the course of the proceedings,
she also asked the court to declare that the statements made by the
respondent’s officials at the court hearings concerning her
involvement in the activities of the branch after its liquidation
were untruthful.
- On
26 April 2001 the court suspended the proceedings pending the outcome
of a commercial dispute concerning the lawfulness of the liquidation
of the branch. On 28 December 2001 the Kyiv City Commercial Court
discontinued the proceedings concerning the latter matter.
- On
12 November 2001 and 14 January 2002 the applicant requested the
Kagarlyk Court to resume the proceedings in her case.
- On
6 October 2003 the court resumed the proceedings.
- On
25 December 2003 the court discontinued the proceedings on the ground
that the dispute had already been determined by the courts. On
23 March 2004 the Kyiv Regional Court of Appeal quashed that
decision and remitted the case for fresh consideration. On 9 November
2006 the Higher Administrative Court upheld the decision of 23 March
2004.
- On
20 April 2007 the Kagarlyk Court partly allowed the applicant’s
complaint and found that the tax authorities had unlawfully required
her to act as the director of the branch in the course of an audit of
its activities in February 2001. As regards the statements made by
the respondent’s officials at the court hearings, the court
found that those statements had not been “dissemination of
information” within the meaning of the civil legislation.
- On
12 February and 17 December 2009 respectively, the Kyiv
Administrative Court of Appeal and the Higher Administrative Court
upheld the judgment of the Kagarlyk Court.
- In
the course of the proceedings the applicant amended her complaint on
three occasions. According to the Government, she lodged a request
for the adjournment of the proceedings for an unspecified period. The
applicant stated that she had not sought adjournment of the
proceedings.
B. The second set of proceedings
- In
February 2001 M., a tax officer, instituted criminal proceedings
against the applicant for tax evasion. On 17 March 2004 the Kagarlyk
Court discontinued those proceedings for lack of corpus delicti
in the applicant’s actions.
- In
2001 the applicant lodged with the prosecutors a criminal complaint
against M. about his allegedly unlawful actions in the course of the
criminal proceedings. There has been no final decision given on the
applicant’s complaint so far.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the length of the first set of proceedings had been
incompatible with the “reasonable time” requirement. 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:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
- The
Court notes that the period to be taken into consideration began on
21 March 2001 and ended on 17 December 2009. Between 26 April 2001
and 6 September 2003 the proceedings were formally suspended. The
Court would normally exclude such period from the overall length of
proceedings. However, it notes that, although the proceedings
concerning the commercial dispute ended on 28 December 2001, the
Kagarlyk Court resumed its own proceedings only on 6 October 2003
(see paragraphs 7 and 9 above), that is, after one year and nine
months, without any justification having been given for such a delay,
even though the applicant asked for the proceedings to be resumed in
January 2002. Therefore, although the proceedings formally lasted for
about six years and three months before three judicial instances, the
Court, in considering the reasonableness of their length, will take
into account the above delay (see Karnaushenko
v. Ukraine, no. 23853/02, § 58,
30 November 2006).
A. Admissibility
- The
Court notes that it has not been disputed by the parties that Article
6 § 1 of the Convention is applicable to the proceedings under
its civil head and sees no reasons to hold otherwise, in particular,
given that the proceedings partly concerned the applicant’s
right to reputation and the courts examined that part of the case on
the merits (see paragraphs 6 and 11 above).
- The
Court further notes that the 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
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).
- Turning
to the facts of the case, the Court notes that the complexity of the
case and the applicant’s conduct alone cannot explain the
overall length of the proceedings. On the other hand, it notes that
the delay in resuming the proceedings by the Kagarlyk Court (see
paragraphs 7, 9 and 18 above) and
the lengthy examination of the case by the Higher Administrative
Court (see paragraph 10 above) were attributable to the domestic
courts. It concludes, therefore, that the responsibility for the
protracted length of the proceedings rested with the State.
- 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, for instance,
Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; Moroz
and Others v. Ukraine, no. 36545/02,
§ 62, 21 December 2006; and Golovko
v. Ukraine, no. 39161/02, § 65,
1 February 2007).
- 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. REMAINING COMPLAINTS
- The
applicant also complained under Articles 6 § 1 and 13 of the
Convention of lengthy examination of her criminal complaint against
M.
- 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, costs and expenses
- The
applicant claimed EUR 7,000 in compensation for non-pecuniary damage.
The Government contested that amount.
- The
Court considers that the applicant must have sustained non-pecuniary
damage on the basis of the violation found. Making its assessment on
an equitable basis, as required by Article 41 of the Convention, it
awards the applicant EUR 1,600.
B. 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 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 1,600 (one thousand
six hundred euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Ukrainian hryvnias 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 9 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Rait Maruste
Deputy Registrar President
