KRAVCHENKO v. UKRAINE - 46673/06 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 596 (30 June 2016)

In the case of Kravchenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          Faris Vehabović,
          Síofra O’Leary,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 7 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46673/06) 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, Mr Stanislav Semenovich Kravchenko (“the applicant”), on 7 November 2006.

2. The applicant, who was granted legal aid, was represented by Mr A. Sanzhara, a lawyer practising in Dniprodzerzhynsk. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.

3. The applicant complained, in particular, under Article 6 § 1 of the Convention that the proceedings in his case had been unfair and too long.

4. On 9 November 2010 the applicant’s complaints under Article 6 § 1 of the Convention of a lack of access to a court and of the excessive length of the proceedings were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1939 and lives in Dnipro.

6. He was formerly a shareholder in two private companies, O. and L., which were liquidated on the basis of decisions by other shareholders. Accordingly, the local authorities struck the companies out of the list of legal entities. The applicant instituted several sets of court proceedings in that regard.

A. Proceedings concerning company O.

7. On 21 April 2003 the applicant instituted proceedings in the Zhovtnevyy District Court of Dnipro (“the District Court”) against the local council and three private persons, challenging the company’s liquidation, claiming back his shares and seeking compensation. The applicant made changes to his claims on a number of occasions.

8. In the course of the proceedings, about twenty of the approximately fifty hearings were adjourned at the request of one or more of the parties, or owing to their failure to appear. Between July 2005 and February 2007 no hearings were held pending the outcome of appeals in cassation against a procedural decision by one or other of the defendant parties. Between May 2007 and July 2008 courts at three levels of jurisdiction examined the question of whether the case should be considered within the framework of civil or commercial proceedings. Eventually, it was decided that the case should be examined under the rules of civil procedure and examination on the merits resumed in August 2008.

9. Overall, the proceedings lasted for over seven years and eight months, the final decision being taken by the Supreme Court on 29 December 2010. That court upheld decisions of the District Court of 30 June 2010 and of the Dnipro Regional Court of Appeal (“the Court of Appeal”) of 16 September 2010 rejecting the applicant’s claims as unsubstantiated. The courts found that there had been no violation of the applicant’s rights as a shareholder of O.

B. Proceedings concerning company L.

1. Civil claim

10. In January 2005 the applicant brought a civil claim with the District Court against the local council and a number of private persons, challenging the liquidation of company L. and the authorities’ decisions in that regard. He also sought the restoration of the company as a legal entity, recovery of his shareholding and an order to declare the minutes of the shareholders’ general assembly invalid.

11. On 2 June 2006, the court decided, in the applicant’s presence, to leave his claim without examination, finding that it concerned essentially the same issue as one which it had examined in proceedings concerning the applicant’s administrative claim (see paragraph 15 and 16 below).

12. On 7 June 2006 the applicant lodged a statement of intent with the Court of Appeal to appeal against the decision of 2 June 2006. On 16 June 2006 he lodged an appeal, stating, inter alia, that that decision had been incorrect, as his administrative claim had concerned only a part of the issues raised in the civil claim.

13. On 25 July 2006 the Court of Appeal left the applicant’s appeal without examination, finding that the statement of intent to appeal had been lodged outside the five-day time-limit envisaged by Article 294 § 2 of the Code of Civil Procedure of 2004 (see paragraph 20 below). According to the appeal decision, the time-limit in question had started to run from the date of the pronouncement of the contested decision.

14. On 9 October 2006 the Supreme Court dismissed the applicant’s appeal in cassation, finding no fault on the part of the lower courts.

2. Administrative claim

15. In November 2005 the applicant brought an administrative claim in the District Court against the head of the local council, seeking the annulment of the decision striking L. out of the list of legal entities.

16. On 17 April 2006 the court, having examined the case pursuant to the Code of Administrative Justice of 2005, rejected the applicant’s claim as unsubstantiated, finding that the contested decision had been lawful. The court further noted that the applicant had made allegations of the unlawfulness of the shareholders’ decision to liquidate the company, which could not be examined in the framework of administrative proceedings. It also noted that the applicant’s claim had been brought out of time, though it did not consider it necessary to reject it on that ground.

17. On 20 September 2006 the Court of Appeal upheld the decision of 17 April 2006.

18. On 28 October 2008 the Higher Administrative Court quashed the decisions of the lower courts and terminated the proceedings. It found that the claim should not have been examined within the framework of administrative proceedings, as it essentially concerned a property dispute. The Higher Administrative Court noted that the applicant’s claim could be heard under the Code of Civil Procedure of 2004.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Civil Code of 2003

19. Article 257 and 261 of the Code provide that the time-limit for lodging a civil claim is three years and that the calculation of that time-limit starts from the day a person learns, or could have learned, of a breach of his or her rights. According to Article 265 § 1, if a court leaves a claim without examination, the time-limit does not stop running.

B. Code of Civil Procedure of 2004

20. The relevant extracts from the Code of Civil Procedure of 2004, as worded at the material time, read as follows:

Article 67. Types of procedural time-limits

“1. The time-limits during which procedural acts are to be performed shall be set by law, and if they have not been set by law [the time-limits shall be] set by the court.”

Article 69. Start of the running of procedural time-limits

“1. A procedural time-limit shall start running the day after the corresponding calendar date (відповідної календарної дати) or [the date of] the event [to which the time-limit is linked].”

Article 70. Expiry of procedural time-limits

“...

5. The last day of the time-limit shall run until [midnight] ...

6. The time-limit shall not be considered to be missed if the claim, complaint, other documents or materials, or money have been submitted to the post office or transferred by other means of communication before its expiry.”

Article 73. Renewal or extension of procedural time-limits

“1. A court shall renew or extend the time-limit ... at the request of a party ... if it has been missed for justifiable reasons.

2. The question of renewing or extending an expired time-limit shall be decided by the court ... to which a document or evidence was due to be submitted. The persons taking part in the proceedings shall be informed of the place and time of consideration of that question. The presence of those persons is not compulsory.

3. A document or other evidence concerning which the request [for renewal or extension of the time-limit] has been lodged may be submitted together with the request ...”

Article 207. Leaving a claim without examination

“1. A court shall leave a claim without examination, if:

...

(4) a dispute between the same parties, concerning the same subject-matter and based on the same grounds is being examined by another court;

...

2. A claimant shall have the right to lodge the claim again, if the ground(s) for leaving that claim without examination have ceased to exist.”

Article 294. Time-limits for lodging an appeal

“...

2. [A] statement of intent to lodge an appeal against a decision of a first-instance court may be lodged within five days of the day on which the decision was pronounced ...

3. A statement of intent or an appeal submitted after the expiry of the time-limit shall be left without examination unless the court of appeal finds valid reasons to renew the time-limit upon a request by the appellant ...”

C. Examples from the domestic case-law regarding the application of the Code of Civil Procedure of 2004 in so far as it concerned time-limits on appeal

21. Decisions published in Ukraine’s domestic case-law database (Єдиний державний реєстр судових рішень) demonstrate that at the material time the courts’ practice concerning the calculation of time-limits on appeal under the Code of Civil Procedure of 2004 was not uniform. For instance, in its decision of 13 July 2006, rejecting an appeal in a civil case (no. 22-4456/2006) as lodged out of time, the Zaporizhzhya Court of Appeal held that, as the contested decision of the first-instance court had been delivered on 26 May 2006, the last day for lodging a statement of intent to appeal had been 31 May 2006. In another civil case (no. 22ц- 628) the Chernivtsi Court of Appeal took a similar approach in its decision of 27 July 2006, holding that the time-limit for lodging a statement of intent to appeal against the first-instance decision of 6 July 2006 had expired on 11 July 2006. However, in its decision of 14 July 2006, which also concerned a civil case (no. 22-2324), the Lugansk Court of Appeal held that the last day for lodging a statement of intent to appeal against the first-instance court’s decision of 5 June 2006 had been 9 June 2006.

D. Resolution of the Plenary of the Supreme Court on Appeals in Civil Cases (24 October 2008)

22. The relevant part of the Resolution reads as follows:

“In order to ensure the uniform and correct application of the Code of Civil Procedure [of 2004] by the courts when examining cases on appeal, the Plenary Supreme Court resolves to provide the courts with the following explanations:

...

5. When calculating the time-limits for lodging an appeal against a judgment or a decision of the first-instance court, provided for in Article 294 of the [Code of Civil Procedure of 2004], the rule contained in Article 69 of the [Code] ... shall be taken into account and the requirements of Article 70 of the [Code] shall be complied with. For decisions adopted in camera, those time-limits shall be calculated from the day of their adoption.

...”

THE LAW

I. LENGTH OF THE PROCEEDINGS CONCERNING COMPANY O.

23. The applicant complained that the length of the proceedings concerning company O. had been excessive, contrary to 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 ...”

24. The Government contested that argument, stating, inter alia, that the applicant and other parties had contributed to the overall length of the proceedings, which had not been unreasonable.

25. The impugned proceedings, which began in April 2003 and ended in December 2010, lasted for over seven years and eight months before courts of three levels of jurisdiction (see paragraphs 7 and 9 above).

A. Admissibility

26. The Court notes that this 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

27. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, 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).

28. Turning to the present case, the Court notes that the impugned proceedings were undoubtedly important for the applicant. Also, they were of some complexity, particularly in view of the legal issues involved and the number of parties to the proceedings. However, this complexity alone could not justify the overall duration of the proceedings.

29. The Court further considers that, although the applicant caused some delays in the proceedings, principally by making changes to his claims, lodging appeals and requesting the adjournment of several hearings, the domestic courts bear the main responsibility for two substantial delays of about three years in total, between July 2005 and February 2007, and between May 2007 and July 2008, during which no hearings on the merits took place (see paragraphs 8 and 9 above).

30. 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).

31. 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 impugned proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1 of the Convention in that regard.

II. THE APPLICANT’S RIGHT OF ACCESS TO A COURT AS REGARDS HIS CLAIMS CONCERNING COMPANY L.

32. The applicant complained of a lack of access to a court as regards his claims concerning company L. He relied on Article 6 § 1 of the Convention.

A. Admissibility

33. The Government submitted that the applicant had not exhausted the domestic remedies available to him. In particular, he had not brought a new civil claim with the courts concerning L., although the court decisions concerning his administrative claim had indicated with sufficient clarity that the matter should have been dealt with under the Code of Civil Procedure of 2004.

34. The applicant disagreed.

35. The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaint of a lack of access to a court and that it must therefore be joined to the Court’s consideration of the merits of that part of the application.

36. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

37. The applicant complained that the decision of the Court of Appeal of 25 July 2006 had been contrary to the relevant procedural regulations and that the courts had unlawfully refused to examine the merits of his claims concerning company L.

38. The Government argued that the decision of the Court of Appeal of 25 July 2006 had been in compliance with the law and that the applicant should have requested a renewal of the time-limit for lodging his appeal against the decision of 2 June 2006.

39. The Court notes that the applicant’s civil and administrative claims at issue generally concerned the procedure for the liquidation of a company of which the applicant had been a shareholder, which involved various decisions by other shareholders and a local council (see paragraph 6 above). As can be seen from the domestic courts’ decisions, in particular that of the Higher Administrative Court, the matter had to be examined in the framework of civil proceedings (see paragraph 18 above). That was not contested by the applicant in a meaningful and substantiated way and the Government does not appear to disagree. The Court also finds no grounds to consider otherwise. Moreover, it is primarily for the national authorities, notably the courts of appeal and of first instance, to resolve problems of interpretation of domestic rules of procedure (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, and Perez v. France [GC], no. 47287/99, § 82, ECHR 2004-I).

40. The Court further notes that the applicant could not pursue his civil claim concerning company L. as ultimately his appeal against the decision of 2 June 2006 rejecting his claim as inadmissible was blocked owing to the application of procedural limitations. In particular, by the decision of the Court of Appeal of 25 July 2006, the applicant was found to have failed to comply with the five-day time-limit for lodging a statement of intent to appeal, as required at the material time (see paragraphs 13 and 20 above). The applicant’s main complaint was that the dismissal of his appeal had been contrary to domestic law and the Convention and had entailed a violation of his right of access to a court (see paragraphs 32 and 37 above).

41. In this regard, the Court reiterates that the right to a court, of which the right of access is one aspect, is not absolute: it may be subject to limitations permitted by implication, particularly as regards the conditions of admissibility of an appeal. However, those limitations must not restrict the exercise of the right in such a way or to such an extent that its very essence is impaired. They must pursue a legitimate aim and there must be a reasonable degree of proportionality between the means employed and the aim sought to be achieved (see Melnyk v. Ukraine, no. 23436/03, § 22, 28 March 2006, and Peretyaka and Sheremetyev v. Ukraine, nos. 17160/06 and 35548/06, § 33, 21 December 2010).

42. The rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and legal certainty. Those concerned must expect such rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Melnyk, cited above, § 23, and Peretyaka and Sheremetyev, cited above, § 34).

43. The Court notes that although the parties disagreed as regards the interpretation and application of specific procedural regulations, it is not necessary to examine whether the relevant rules were accurately applied by the domestic courts. The Court considers that in the present case its task is to examine whether the contested application of domestic rules of procedure could be regarded as foreseeable from the point of view of the applicant (see Melnyk, cited above, § 26, and Mushta v. Ukraine, no. 8863/06, § 41, 18 November 2010).

44. The Court reiterates its findings in a number of cases against Ukraine that the above guarantees enshrined in Article 6 are applicable to proceedings before courts of appeal in civil matters (see, for instance, Volovik v. Ukraine, no. 15123/03, §§ 53-61, 6 December 2007).

45. In this context, the Court notes that Articles 69 and 70 of the Code of Civil Procedure of 2004 contained general rules regarding the calculation of procedural time-limits. In particular, a time-limit started to run the day after a contested appeal decision and ended on the last day of the time-limit. Article 294 § 2 of the Code of Civil Procedure of 2004, which provided at the material time that a statement of intent to appeal had to be lodged within five days of the day on which the decision was pronounced, did not contain any reservation as regards the application of the general rules contained in Articles 69 and 70. Thus, it was not unreasonable for the applicant to have expected that the five-day time-limit applicable in his case would start running on 3 June 2006, which was the day after the decision of 2 June 2006, and end on 7 June 2006, which was the fifth full day of the time-limit. Moreover, the applicant’s interpretation of the procedural rules in question does not appear to be completely unfounded, having regard in particular to the explanation given by the Plenary Supreme Court subsequently in 2008 (see paragraph 22 above).

46. As can be seen from the decision of 25 July 2006, the Court of Appeal took the date of the contested decision as the starting point for the time-limit and therefore found that it had expired on 6 June 2006. The impugned decision of the Court of Appeal contained no explanation or argument as to why the general rule concerning the starting date of procedural time-limits, contained in Article 69 of the Code of Civil Procedure of 2004, had not applied in the applicant’s case. Nor did the decision of the Supreme Court provide an explanation in that regard. It is true that some uncertainty in the application of those provisions might have been caused by the way the procedural regulations at issue were worded and the courts’ interpretation thereof in the applicant’s case, which differed from that of the applicant, was not arbitrary. However, none of the approaches could be said to have been based on established practice and the courts’ relevant case-law was not uniform at the time (see paragraph 21 above).

47. Therefore, the Court considers that in the circumstances of this case the application of procedural limitations by the Court of Appeal was not clear and foreseeable from the applicant’s point of view and thus was not in compliance with the principle of legal certainty. There is nothing in the applicant’s behaviour to justify that the burden of the consequences of that uncertainty should be placed on him.

48. The Court further considers that in these circumstances the applicant should not be reproached for not having brought a new civil claim after the Higher Administrative Court had terminated the proceedings on his administrative claim on 28 October 2008 (see paragraph 18 above), as suggested by the Government. It was not demonstrated that a new claim concerning the same matters as the applicant’s initial civil claim would have been examined by the civil courts, having regard in particular to the general three-year time-limit for lodging civil claims, whereas, as it transpires from the relevant regulations, proceedings resulting in a decision refusing to examine a claim did not stop that time-limit from running (see paragraphs 19-20 above). In any event, in the circumstances it is not justified to require the applicant to launch a new set of civil proceedings in order to remedy the situation created by the courts’ problematic approach to the calculation of time-limits for appeals. The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies previously joined to the merits (see paragraphs 33 and 35 above).

49. Their argument that the applicant should have sought the renewal of the time-limit at issue (see paragraph 38 above) should also be rejected, as he could not have reasonably foreseen, at the time, that the time-limit had already expired when he had lodged his statement of intent to appeal. Thus, it was not unreasonable that the applicant considered himself acting in conformity with the relevant procedure (see Peretyaka and Sheremetyev, cited above, § 41). Furthermore, he challenged the application of the time-limit by the Court of Appeal before the Supreme Court, though no specific reply was given in that regard (compare with the situation in Melnyk, cited above, §§ 15 and 18).

50. In the light of the foregoing, the Court finds that there has been a breach of Article 6 § 1 of the Convention on account of the decision of the Court of Appeal of 25 July 2006 to reject the applicant’s appeal.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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.”

52. The applicant failed to submit a claim for just satisfaction in compliance with the procedure. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection as to the exhaustion of domestic remedies and rejects it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings concerning company O.;

4. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of access to a court as regards the applicant’s claims concerning company L.

Done in English, and notified in writing on 30 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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