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FIFTH
SECTION
CASE OF
TSYGANKOV v. UKRAINE
(Application
no. 27552/08)
JUDGMENT
STRASBOURG
10 May 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Tsygankov 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 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 27552/08) 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 Nikolay Ivanovich Tsygankov (“the applicant”),
on 5 June 2008.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- On
25 August 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
- The Russian
Government informed the Court that they did not wish to exercise
their right to intervene under Article 36 § 1 of the Convention.
THE FACTS
- The
applicant was born in 1950 and lives in
Simferopol.
A. Proceedings instituted by the applicant in 2001
- On
16 July 2001 the applicant lodged with the Kyivsky District Court of
Simferopol (“the Kyivsky Court”) three separate claims
against the K. company, seeking compensation for the company’s
alleged failure to comply with its contractual obligations and
claiming the title to two garage-boxes erected by the latter pursuant
to several contracts with the applicant.
- Subsequently,
the applicant amended his claims on several occasions.
- The
applicant’s claims concerning the title to two garage-boxes
were joined, while the compensation claim was examined separately.
1. Proceedings concerning the applicant’s
compensation claim (the first set of proceedings)
- On
11 July 2002 the Kyivsky Court allowed the applicant’s
compensation claim in full. The respondent appealed.
- On
6 November 2002 the Crimea Court of Appeal quashed the judgment and
remitted the case for fresh consideration.
- On
9 November 2006 the Kyivsky Court rejected the applicant’s
claim as unsubstantiated and time-barred. The applicant appealed on
5 December 2006.
- On
21 February 2007 the Crimea Appeal Court upheld the judgment. The
applicant appealed in cassation on 10 April 2007.
- On
6 December 2007 the Supreme Court decided to reject the applicant’s
appeal in cassation. On 27 December 2007 a copy of
the decision was sent to the applicant.
2. Proceedings concerning the title to two garage-boxes
(the second set of proceedings)
- In
the course of the proceedings concerning the title to two
garage-boxes the respondent company introduced a counter-claim,
alleging that the applicant’s claims had been already met, as
his wife, acting on the applicant’s behalf under a power of
attorney, had obtained compensation for the property in question
pursuant to two separate contracts dated 18 February 2002.
- On
15 July 2003 the Kyivsky Court ruled against the applicant, allowing
the respondent’s counter-claim, finding that the respondent had
performed its obligations under the contracts by paying the requisite
compensation to the applicant’s wife.
- On
29 July 2003 the applicant appealed.
- On
24 November 2003 the appeal was returned to the applicant for
procedural shortcomings, which he was instructed to rectify by
26 December 2003.
- On
13 April 2004 the Crimea Court of Appeal upheld the judgment of
17 July 2003. The applicant appealed in cassation.
- On
22 June 2007 the Zaporizhzhya Court of Appeal, acting as a court
of cassation, rejected the applicant’s appeal in cassation as
unsubstantiated.
- On
12 June 2008 the applicant requested the Kyivsky Court to inform him
of the outcome of his appeal in cassation.
- On
17 July 2008 the applicant received a copy of the decision of 22 June
2007.
- According
to the Government, in the course of the proceedings the courts had to
adjourn the hearings sixteen times in the first set and nineteen
times in the second set of proceedings due to the parties’
failure to appear and requests for adjournments. In particular, some
of the hearings were adjourned or not held due to the absence of the
applicant’s representative.
B. Proceedings instituted by the applicant in 2004
- On
11 May 2004 the applicant lodged with the courts two separate claims
against his wife and the company, challenging the validity of the
contracts of 18 February 2002 (see paragraph 14 above).
- By
decisions of 30 June and 8 November 2004, the Zaliznodorozhnyi
District Court and the Crimea Court of Appeal respectively
invalidated the contracts of 18 February 2002 and ordered the
applicant’s wife to pay back to the company the amounts she had
received under the contracts.
- According
to the applicant, he informed the courts dealing with his claims for
the title to two garage-boxes about the latter decisions.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the
first and second sets 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 the complaint about the length of the proceedings 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
- The
Government contested the argument of the unreasonableness of the
proceedings stating that there had been no delays in the course of
the proceedings that could be attributed to the State. According to
them, the case was complex and the parties, the applicant in
particular, contributed to the length of the proceedings by
introducing additional claims, lodging procedural requests and by
failing to attend the hearings. The Government also submitted
that the examination of the case by the court of cassation in the
second set of proceedings had been somewhat delayed due to the high
case-load at the Supreme Court. That problem was eventually resolved
by legislative measures put in place in February 2007, according to
which the backlog of cassation appeals was distributed between the
courts of appeal.
- The
applicant did not comment on the Government’s arguments.
30. 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 period to be taken into consideration as to the
first set of proceedings began in July 2001 and ended in
December 2007, when the applicant was informed of the final decision
(see Widmann v. Austria, no. 42032/98, § 29,
19 June 2003, and Gitskaylo v. Ukraine,
no. 17026/05, § 34, 14 February 2008). It thus lasted about
six years and five months for three levels of jurisdiction. As
regards the period to be taken into consideration as to the second
set of proceedings, it began on 16 July 2001 and ended on
17 July 2008, when the applicant was served with the final
decision. It thus lasted seven years for three levels of
jurisdiction.
- The
Court notes that the proceedings concerned a dispute which was not
legally or factually complex. The parties and in particular the
applicant somewhat contributed to their length. The Court notes that
due to the applicant’s or his representative’s failure to
appear and requests for adjournment of hearings, the first set of
proceedings was protracted for about seven months, while the second
set was protracted for about ten months. A further delay of about one
month in the first set of proceedings was due to the applicant’s
failure to comply with procedural requirements for lodging appeals
(see paragraphs 16-17 above).
- The
Court does not however consider that the applicant’s behaviour
alone cannot justify the overall duration of the proceedings. The
Court notes that the major delay in the first set of the proceedings
was caused by the lengthy reconsideration of the case by the Kyivsky
Court which lasted for four years (see paragraphs 10 and 11 above).
As regard the second set of proceedings, it took the Zaporizhzhya
Court of Appeal over three years to decide on the applicant’s
appeal in cassation and another year to inform him of its decision
(see paragraphs 18-21 above).
The
justification for the delay before the court of cassation in the
second set of proceedings, provided by the Government (see paragraph
28 above), may not be accepted, because by the time the impugned
legislative amendments were introduced the applicants’
cassation appeal had been waiting for consideration for nearly three
years.
- In
the light of the foregoing, the Court concludes that the State
authorities bear the primary responsibility for the excessive length
of the first and the second sets of proceedings 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 first and the second sets
of proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER COMPLAINTS
37. Relying
on Article 6 of the Convention, the applicant complained about the
outcome and unfairness of the proceedings, challenging the courts’
assessment of facts and application of law and their impartiality. He
alleged that his appeal in cassation in the first set of proceedings
had been heard by the wrong composition of the panel of judges. The
applicant further complained that his cassation appeal in the second
set of proceedings had not been heard by the Supreme Court and that
he had not been informed of the hearing on his cassation appeal.
Relying on Article 8 of the Convention and Article 1 of Protocol No.
1, the applicant claimed that he had been unlawfully deprived of his
property on account of the outcome of the proceedings.
- In
the light of the materials in its possession, the Court finds that
the applicant’s complaints 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 as 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.”
- The
applicant did not submit a claim for just
satisfaction in accordance with the Court’s procedure.
Accordingly, there is no call to award him any
sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaint under
Article 6 § 1 of the Convention concerning the excessive length
of the first and second sets of proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 10 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Mark Villiger
Deputy Registrar President
