FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19187/04 by Volodymyr Stanislavovych GUZENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 6 January 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Rait Maruste , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, Mykhaylo Buromenskiy , ad hoc judge, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 20 February 2004,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Volodymyr Stanislavovych Guzenko, is a Ukrainian national who was born in 1960 and lives in the town of Korosten , Ukraine . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev .

A. The circumstances of the case

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

The applicant ' s family and Mr. B. shared a communal apartment. In March 1998 the Korosten Local Executive Council granted Mr B. ' s request to privatise his part of the apartment (“ the disputed property ”). Subsequently, Mr B. gave the disputed property as a donation to Mrs T. and Mrs Ta.

On 3 November 1998 the applicant and his wife instituted proceedings against Mr B., Mrs T. and Mrs Ta., and the Korosten Local Executive Council in the Korosten Court challenging the privatisation and seeking to have the donation contract declared null and void. In particular, the applicant alleged that Mr B. , being a Russian national , had no right to privatise the disputed property.

Since Mr B. was residing in Russia , on 19 May 1999 the court asked the Embassy of the Russian Federation in Ukraine (the Embassy) to provide it with the information about Mr B. ' s nationality. On 24 May 1999 the Head of the Consular Department of the Embassy replied that the requested information had been confidential. He further indicated that the Ukrainian authorities could lodge a request with the Ministry of Justice of the Russian Federation, as prescribed by Article 5 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”).

On 16 September 1999 the applicant sought a ruling to request the Russian authorities to state whether Mr B. had been a Russian national on the date of the privatisation. He also requested suspension of the proceedings until the Korosten Court received a reply. On 11 November 1999 the court granted the applicant ' s petition.

In December 1999 the request was transmitted to the Russian authorities. The Korosten Court requested that Mr B. be questioned, the applicant ' s claim be served on him and that he be summoned to the Korosten Court . The Korosten Court also asked for copies of the documents concerning Mr B. ' s nationality on the date of the privatisation.

In the period from 3 November 1998 to 15 December 1999 the Korosten Court scheduled some ten hearings. They were scheduled at intervals ranging from several days and two or three months.

On 5 June 2000 Mrs T. and Mrs Ta. lodged a counterclaim, seeking a ruling to oblige the applicant ' s family not to hinder them in their use of the apartment. They also claimed compensation for pecuniary and non-pecuniary damage.

On 16 February 2001 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the reply from the Russian authorities had been received. Since the request was not executed in a due manner, it was sent back to the Ministry of Justice of the Russian Federation .

On 21 March 2001 the applicant lodged an additional claim. He requested the Korosten Court to rule that he had the right to use the disputed property.

On 12 February 2002 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the request in respect of serving the documents and questioning Mr B . had not been performed by the Russian authorities, since Mr B. had failed to appear before them.

On 14 March 2002 the court scheduled a hearing. It was adjourned as the parties failed to appear.

On 3 April 2002 the Korosten Court dismissed the applicant ' s petition that a new request be sent to the Russian authorities. The applicant unsuccessfully challenged the judge sitting in his case.

On 23 April 2002 the court held a hearing in the case.

On 6 August 2002 Mr B. authorised Mr T. to represent him in the proceedings before the Korosten Court .

On 21 August 2002 the court partly allowed the claims lodged by Mrs T. and Mrs Ta. and rejected the applicant ' s claims. In particular, the court found that on the date of the privatisation Mr B. had had Ukrainian nationality. The court found no proof in support of the applicant ' s allegations. The applicant appealed against the judgment contesting, in particular, the first-instance court ' s finding that Mr B. had been a Ukrainian national at the time.

According to the Government ' s observations, in October 2002 the court of appeal, following the applicant ' s request, asked the Ministry of Justice of the Russian Federation to provide it with the information about Mr B. ' s nationality. The reply containing information about Mr B. ' s nationality reached the court of appeal on 19 June 2003. Neither the applicant nor the Government informed this Court of the content of that reply.

On 4 December 2002 the court of appeal dismissed the applicant ' s appeal as unsubstantiated and upheld the judgment given by the first-instance court.

In January 2003 the applicant lodged an appeal in cassation with the first-instance court, which transferred it for consideration to the Supreme Court.

On 31 October 2003 the Supreme Court remitted the appeal in cassation to the first-instance court, for certain shortcomings to be rectified by the applicant.

In a ruling of 3 December 2003 the Korosten Court stated that the applicant could re-lodge his appeal in cassation after these shortcomings had been rectified, but before 20 December 2003.

On 19 December 2003 the applicant re-lodged his appeal in cassation.

On 26 February 2004 the Supreme Court upheld the decisions of the lower courts.

B. Relevant international law

The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January) provides as follows:

Article 4

Extension of Legal Assistance

“1. The judicial authorities of the Contracting States shall extend legal assistance in civil, family, and criminal matters in accordance with the relevant provisions of the present Convention....... “

Article 5

Liaison Procedure

“When acting pursuant to this Convention, the competent judicial authorities of the Contracting States shall communicate with one another through their central, regional, and other agencies, unless a different liaison procedure is prescribed hereunder. The Contracting States shall determine lists of their central, regional, and other agencies duly empowered to maintain direct contacts by notice to the depository.”

Article 6

Scope of Legal Assistance

“The Contracting States shall provide one another with legal assistance by performing such procedural and other acts as are stipulated by the legislation of the Contracting State requested to take such measures, including, but not limited to, the execution and sending of documents, the conduct of inspections and searches, the recovery and delivery of physical evidence, the performance of expert examinations, the questioning of parties to the proceedings, third parties, suspects, indicts, victims, witnesses, and experts, efforts to track down certain individuals, criminal prosecution, the extradition of persons to be held criminally liable or face that punishment already fixed for them in appropriate sentences, the recognition and enforcement of judgments in civil matters, verdicts on civil claims, executive endorsements, and the service of process.”

Article 8

Performance Procedure

“1 . When acting upon a letter of request, the authority addressed shall apply the legislation of its own country. If petitioned by the authority seeking assistance, it may also apply the procedural rules of the Contracting State where the latter is based, unless such rules are inconsistent with the legislation of the Contracting State where such assistance is sought.

2. If the authority addressed is not competent to satisfy the request submitted, it shall pass it onto a competent authority and shall notify the authority requesting assistance accordingly.

3. If petitioned by the authority seeking assistance, the authority addressed shall notify the latter and the other parties concerned of the time and place of the request ' s fulfilment so that they should be able to attend its satisfaction in accordance with the legislation of the Contracting State where such assistance is sought.

4. Where the precise address of the person identified in a letter of request is unknown, the authority addressed shall take the measures necessary to ascertain such address in accordance with the legislation of the Contracting State where such authority is based.

5. After completing its action on a letter of request, the authority addressed shall return the corresponding documents to the authority which applied for that assistance; where the legal assistance sought cannot be provided as requested, the authority addressed shall also report those circumstances that prevent such performance and shall return the corresponding documents to the authority seeking that assistance.”

Article 10

Letters Requesting Service of Process

“1. That judicial authority addressed by a letter of request shall serve process in accordance with that procedure in effect in its Contracting State if the documents to be delivered have been executed in the latter ' s language or in Russian or are accompanied by duly certified translations into such languages. Otherwise, it shall pass such documents on to the recipient if the latter agrees to accept them voluntarily.

2. If the documents concerned cannot be delivered at the address indicated in a letter of request, the judicial authority addressed shall initiate the measures necessary to ascertain such address. Should it prove impossible for the judicial authority addressed to find out that address, it shall advise the judicial authority seeking assistance accordingly and return the documents due for service.”

Article 11

Confirmation of Service of Process

“The requested service of process shall be confirmed by an appropriate acknowledgement which shall be signed by the recipient and evidenced by the official seal of the judicial authority addressed, indicate the date of such service, and carry the signature of an officer of the serving judicial authority, or by another document issued by the latter and describing the manner, place and time of the service performed.”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length, and outcome of the proceedings in his case and that they were unfair. He further complained that the appeal in cassation had been considered in his absence. The applicant alleged that the judges in the domestic courts were partial. The applicant a lso alleged that by granting Mr B. ' s request to privatise the disputed property the domestic authorities had violated his right to family life and home as guaranteed by Article 8 of the Convention. Lastly, he complained under Article 13 about lack of an effective remedy for his complaints.

T HE LAW

1. The applicant complained that the length of the proceedings in his case 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 applicant also complained about lack of an effective domestic remedy for his complaint under Article 6 § 1 about the excessive length of the proceedings. He relied on Article 13 which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

(a) Submissions of the parties

The Government contested the applicant ' s complaints. In particular, they submitted that the periods of inactivity from 26 November 1999 till 14 March 2002 and from October 2002 to 19 June 2003 could not be attributable to the State, since the requests were pending before another jurisdiction. They further maintained that the case was complex and that the Ukrainian judicial authorities had acted with due diligence. According to the Government, the applicant and the defendants were responsible for some periods of delay in the proceedings. In particular, they pointed out that the applicant had lodged an additional claim, challenged a judge sitting in his case, lodged demands to provide additional documents and call witnesses and appealed against the judgment to the higher courts. They also submitted that the length of the proceedings had been objectively justified by the fact that Mr B. was living in Moscow , Russia .

The applicant disagreed. In particular he noted the period of inactivity from 4 October 1999 till 11 April 2001 and the lengthy consideration of his cassation appeal.

(b) The Court ' s assessment

The Court notes that the proceedings complained of began on 3 November 1998 and ended on 26 February 2004. Therefore, the overall duration of the proceedings was five years, three months and twenty four days for three levels of jurisdiction.

The Court reiterates that the “reasonable” length of 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).

In the instant case, the Court considers that the subject matter of the litigation was not particularly complex since the court mainly had to establish whether Mr B. had a right to privatise the disputed property.

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). The Court observes that the proceedings in question were delayed to a certain extent by the lengthy consideration by the Russian authorities of the requests lodged by the Ukrainian court following petitions by the applicant.

With respect to the consideration of the applicant ' s appeal in cassation the Court notes that the relevant State authorities were not the only ones responsible for that lapse of time, since the applicant failed to comply with procedural formalities while lodging his appeal in cassation. Furthermore, the Court notes that the cassation proceedings before the Supreme Court were completed within two months after the applicant had rectified his appeal.

The Court notes that the applicant also contributed to the overall length by lodging various requests, challenging the judge, and by contesting the judgment before the higher courts. The proceedings were consequently adjourned with a view to examining the applicant ' s requests and appeals. The Court notes that although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).

The Court concludes , in the light of the criteria established in its case-law on the question of “reasonable time” and having regard to all the information in its possession, that the length of the proceedings in the instant case did not exceed a reasonable time within the meaning of Article 6 § 1 of the Convention.

In view of the foregoing, the Court considers that the complaint under Article 13 is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained under Article 6 § 1 of the Convention about the outcome of the proceedings in his case , and that they were unfair. In particular, he alleged that the judges in the domestic courts were partial. He further complained that the appeal in cassation was considered in his absence. T he applicant also alleged that by granting Mr B . ' s request to privatise the disputed property the domestic authorities had violated his right to family life and home as guaranteed by Article 8 of the Convention. Lastly, he complained under Article 13 about lack of effective remedies for these complaints.

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 or its Protocols.

Therefore, this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President