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FIFTH
SECTION
CASE OF SHAPOVAL v. UKRAINE
(Application
no. 7411/05)
JUDGMENT
STRASBOURG
8 April
2010
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 Shapoval 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,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 7411/05) 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, Mr Oleg Yuryevich Shapoval (“the
applicant”), on 10 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
6 May 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in the city of Donetsk, Ukraine.
1. Background to the case
- At
the material time the applicant and four other shareholders had equal
shares in the private company A. (“the company”). In 1993
the company bought certain premises from a private company in a
building previously owned by the State.
- In
November 1993 the shareholders decided to liquidate the company and
the liquidation procedure was initiated. On 27 March 1995 the
liquidation procedure was completed and the company was removed from
the relevant companies' register. As a result of the distribution of
the company's property, the applicant acquired the title to the
aforesaid premises (“the disputed property”). However,
according to the applicant's submissions, he did not register his
ownership of them.
2. Proceedings before the domestic courts
7. On
14 February 2000 Mrs K. and her minor children, the heirs of
one of the shareholders of the company, instituted proceedings in the
Kyivsky District Court of Donetsk against the applicant, challenging
his title to the disputed property. The other shareholders and the
Donetsk Regional Department of the State Property Fund were involved
in the proceedings as third parties. The applicant lodged a
counterclaim, seeking recognition of his title to the disputed
property.
- On
20 September 2000 the court ordered the attachment of the disputed
premises.
- In
May 2004 the applicant lodged a claim against the State Property Fund
before the Kyivsky District Court of Donetsk alleging that the latter
had sold a part of the premises situated in the same building to a
private company. The applicant challenged the sales contract alleging
that these premises formed part of the disputed property. Initially
the court considered the claim within the proceedings which were
already pending. By a ruling of 14 June 2004 the court disjoined the
claim into separate proceedings.
- On
14 June 2004 the Kyivsky District Court of Donetsk found for Mrs K.
It held, in particular, that the shareholders had failed to comply
with the relevant legal procedure for the company's liquidation and
the distribution of its property. In consequence, the court declared
the related shareholders' decisions null and void, and redistributed
the company's property. The court acknowledged Mrs K.'s title to the
disputed property apart from the premises in question (see paragraph
9 above). The court awarded the applicant and the other shareholders
64,056
Ukrainian hryvnias (UAH) each, to be paid by Mrs K. By the same
ruling the court lifted the premises' attachment.
- On
16 August 2004 the Donetsk Regional Court of Appeal upheld that
judgment.
- On
21 September 2004 the applicant appealed in cassation. On 21 August
2007 the Kyiv City Court of Appeal, acting as a court of cassation,
dismissed the applicant's appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 14 February 2000 and
ended on 21 August 2007. It thus lasted
seven years and six 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
- 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 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 proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Referring to Article 6 § 1 of the Convention, the
applicant complained that the proceedings had been unfair. In
particular, he alleged that the judges sitting in the domestic courts
lacked impartiality and independence. The applicant also complained
about the non-enforcement of the judgment of 14 June 2004. The
applicant further asserted that by attaching the premises on
20 September 2000 and deciding against him on 14 June 2004, the
State authorities had infringed Article 1 of Protocol No. 1. Finally,
the applicant complained under Article 13 of the Convention that he
had no effective remedy in respect of the complaints under Article 6
§ 1 of the Convention about unfairness and Article 1 of Protocol
No. 1.
- 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
- The
applicant claimed 3,470,880.10 euros (EUR) in respect of pecuniary
damage. He further alleged that he had suffered non-pecuniary damage.
He left the matter to the Court's discretion.
- The
Government contested the applicant's 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, ruling on an equitable basis, it awards the applicant
EUR 1,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed five percent of the value of the disputed premises
that is, according to him, about EUR 79,229.50 plus EUR 10,445.42 in
fees for the valuation of the premises.
- The
applicant, who was not represented before this Court, additionally
claimed EUR 7,352.94 for the legal services. The applicant furnished
a contract with a lawyer but he did not provide any document
evidencing payment of any amount to her.
- The
Government contested the claims.
- 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 documents in its possession and the above criteria, the Court
rejects the applicant's claims under this head.
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 under Article 6 § 1
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;
- 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 1,200 (one
thousand two hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State 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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
