FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1018/04 by AZIM DENIZCILIK Ticaret Ve Sanayi Limited Sirketi against Ukraine

The European Court of Human Rights ( Fifth Section), sitting on 22 June 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , Ganna Yudkivska , judges,

and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 29 December 2003 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the Turkish Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Azim Denizcilik Ticaret Ve Sanayi Limited Sirketi, is a Turkish company with its office in EreÄŸli-Zonguldak , Turkey . It wa s represented before the Court by Mr Y . Efe, a lawyer practising in EreÄŸli ‑ Zonguldak. The respondent Government were represented by Mr Y. Zaytsev , their Agent. The Turkish Government had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court).

The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

At the material time the applicant company owned a ship, M/V Sevgin . On 28 November 2001 it was hired to carry goods of the Ukrainian Company V. from Izmayil, a Ukrainian port, to Bartin, a Turkish port. For this purpose on 13 December 2001 the applicant ' s ship arrived at Izmayil port. According to the applicant, the ship was damaged when mooring. After the cargo had been loaded on the ship, the independent inspectors revealed that the cargo had been damaged because of water leaking through a hole in the ship.

On 28 January 2002 the V. company instituted proceedings in the Izmayil Town Court (the “ Town Court ”) against the applicant, seeking compensation for the damaged cargo. On 31 January 2002, at V. ' s request, the court impounded the applicant ' s ship to secure the claim.

In May 2002 the Town Court adjourned the hearings on two occasions due to the parties ' failure to appear before it.

On 6 June 2002 the Town Court allowed V. ' s claim and awarded it 981,187.59 Ukrainian hryvn ya s ( UAH ) in damages and UAH 1,700 in costs and expenses [1] . On 13 June 2002 the Town Court adopted a decision specifying that the judgment of 6 June 2002 could be enforced by way of selling the impounded ship. According to the applicant company, it was only notified about the proceedings at this stage.

On 19 June 2002 the State Bailiffs ' Service instituted enforcement proceedings and on 21 June 2002 attached the applicant company ' s ship.

On 22 October 2002 the Odessa Regional Court of Appeal, ruling on the applicant company ' s appeal, upheld the judgment of 6 June 2002 but quashed the decision of 13 June 2002, which had been adopted in the absence of the parties. The matter was remitted back to the Town Court but it is not clear from the available documents whether any decision has been taken on it.

On 21 November 2002, at the end of the one-month time-limit for lodging of appeals against the court decisions mentioned in the preceding paragraph, the applicant company appealed in cassation.

On 25 November 2002 the Illichivskyy District Court of Odessa quashed the bailiffs ' decisions of 19 and 21 June 2002, finding that the enforcement proceedings in the applicant company ' s case should have been carried out by the Turkish authorities in accordance with the relevant treaty between Ukraine and Turkey . It further ordered that the applicant company should not be prevented by anybody from using its ship. However, on 2 December 2002, when the crew attempted to board the ship, the bailiffs ' officers barred them access.

On 28 December 2002, at the applicant company ' s request, the Prymorskyy District Court of Odessa prohibited the public sale of the applicant ' s ship. On 29 April 2003 the Odessa Regional Court of Appeal dismissed an appeal by the bailiffs against this decision.

On 22 May 2003 the Town Court , for the purposes of partial enforcement of the judgment of 6 June 2002, acknowledged V. ' s property right over the disputed ship. On 9 June 2003 this decision was enforced.

On 21 July 2003 the General Prosecutor ' s Office informed the applicant that criminal proceedings had been instituted against the bailiffs ' officials for abuse of powers.

On 18 May 2005 the Supreme Court allowed in part the applicant company ' s appeal in cassation and quashed the judgments of 6 June and 22 October 2002 as unfounded remitting the case to the Town Court for a fresh examination.

On 11 July 2005 the Town Court took over the case.

Between 12 August and 28 November 2005 four hearings were adjourned because of, inter alia , the applicant company ' s relevant requests.

On the last-mentioned date the applicant company counterclaimed, seeking damages from V. for the loss of its ship. It also requested to adjourn the hearing. For this reason, on 29 November 2005 the Town Court , having allowed the request, adjourned the hearing till 23 December 2005.

On 23 December 2005 the hearing was adjourned till 31 March 2006 due to the applicant company ' s failure to attend it as its representative was ill.

On 31 March 2006 the Town Court awarded V. damages in the amount of UAH 314,218.72 [2] and rejected the applicant company ' s counterclaim as unsubstantiated.

On 27 April 2006 the applicant company appealed.

On 19 October 2006 the Odessa Regional Court of Appeal upheld the judgment.

On 19 December 2006, at the end of the two-month time-limit for lodging of appeals against the above court decisions, the applicant company appealed in cassation. It did not mention in its cassation appeal that it had not had sufficient time to prepare for the hearings of the case.

On 21 January 2008 the Kharkiv Regional Court of Appeal, acting as a court of cassation, dismissed the appeal and upheld the lower courts ' decisions.

COMPLAINTS

The applicant company complained, without reference to any provision of the Convention, that the length of proceedings in its case had been excessive. It further complained under Article 6 §§ 1 and 3 (b) and Article 13 of the Convention that the proceedings in its case had been unfair, alleging, in particular, that it had not been provided with sufficient time to prepare for the hearings of the case. The applicant company also complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 that the bailiffs had unlawfully arrested, kept and transferred its ship to V. Lastly it relied on Article 14 of the Convention, contending it had been discriminated against by the Ukrainian authorities on the ground of being a foreign company.

THE LAW

1 . The applicant company complained that the domestic courts had protracted its case for six years. The Court considers that this complaint should be examined under Article 6 § 1 of the Convention, which is the relevant provision and which provides, 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 pleaded that the case had been complicated by the foreign status of the applicant company. They also contended that the applicant company had fully enjoyed its procedural rights (namely, it had brought a counter-claim, appealed against court judgments and decisions, requested to adjourn the hearings on several occasions, etc.) and protracted thereby the proceedings in question. They admitted that examination of the applicant company ' s appeal in cassation had been somewhat delayed because of a backlog in the Supreme Court; however, as the backlog had been of temporary nature and was eventually overcome with legislative measures, no liability of the respondent State could be found. Accordingly, they invited the Court to find no violation of Article 6 § 1 of the Convention.

The applicant company disagreed, arguing that, given its maritime context, the case should have been dealt with particular expediency.

The Turkish Government submitted that the standard of Article 6 § 1 of the Convention had not been met in the instant case. In particular, juxtaposition of the period when the case had been examined by the first instance court and the periods when it had been examined by the courts of appeal and cassation instances revealed, in their view, a lack of diligence by the domestic courts of the respondent State. They also drew attention to the reasons for remittal of the case and, lastly, what had been at stake for the applicant company.

The Court observes that the proceedings in question were initiated on 28 January 2002 and ended on 21 January 2008 . They therefore lasted almost six years for three levels of jurisdiction .

The “reasonableness” of the length of these proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent 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 present case, the Court finds t hat the subject matter of the proceedings in question was not of particular complexity. No r , contrary to the applicant company ' s stance, find s the Court that there was any ground for the domestic courts to deal with this case with particular urgency vis-à-vis other cases pending before them.

The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Humen v. Poland [GC], no. 26614/95, § 66, 15 October 1999). In this respect it observes that all the hearings between August 2005 and March 2006 were adjourned due to the applicant company ' s requests and that the applicant company did not contest this fact. This period of delay cannot be attributed to the respondent State and, accordingly, should be deducted from the overall period. The Court also notes that the applicant company took advantage of the available remedies and time-limits by, inter alia , challenging the domestic courts ' judgments and decisions and, most noteworthy, lodging appeals at the end of the relevant time-limit (see, for example, Cesarini v. Italy , 12 October 1992, § § 19-20 , Series A no. 245 ‑ B ). Although parties to civil proceedings cannot be blamed for using the avenues available to them under domestic law in order to protect their interests, they must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).

As regards the conduct of the domestic authorities, the Court agrees with the Turkish Government that there were certain delays attributable to the judicial authorities, which were caused, in particular, by a remittal of the case to the first-instance court and backlog in the Supreme Court of Ukraine. However, it reiterates that a delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see, for example, Pretto and Others v. Italy , 8 December 1983, § 37 , Series A no. 71 ).

Having regard the delay caused by the applicant company and that nothing had urged the domestic courts to handle the case with particular expediency, t he remaining period cannot, in the Court ' s view, be considered “excessive” (see, mutatis mutandis , Lyubchenko v. Ukraine (dec.), no. 15808 / 04 , 27 January 2009).

It therefore finds that the applicant company ' s complaint should be rejected for being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

2 . The Court has examined the remainder of the applicant company ' s complaints. However, having regard to all the material in its possession, it finds that these 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 rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President

[1] . About 203,230 and 352.11 euros (EUR) respectively at the material time .

[2] . About EUR 53,940 at the material time.