FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19451/0 4 by Nadiya Olegovna KIN against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 17 November 2009 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , 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 3 May 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Nadiya Olegovna Kin, is a Ukrainian national who was born in 1980 and lives in Dubno .

A. The circumstances of the case

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

The applicant was working as a teacher in the Dubno Special Educational Centre (“the Educational Centre”) of which her mother was the director.

In November 1998 the Dubno Town Department of Education (“the Department of Education”) applied to a notary for a writ of execution in respect of a debt owed by the Educational Centre.

On 16 November 1998 the notary issued a writ of execution for the amount of 4,362.97 Ukrainian hryvnias (UAH), following which the local bailiffs ’ office (“the Bailiffs”) instituted relevant enforcement proceedings.

On 18 July and 29 August 2000 the Bailiffs seized the movable property of the Educational Centre (among which there had been some religious literature and other items of a religious nature) and evicted it from the premises it occupied. In the course of the seizure neither the applicant nor her mother alleged that any of the property belonged to the applicant.

On 24 April 2001 the Bailiffs sold the seized property at public auction.

First set of the proceedings (claim for recovery of the seized property)

On 30 March 2001 the applicant instituted proceedings in the Dubno Town Court (“the Town Court ”) against the Educational Centre, the Bailiffs and the Department of Education, claiming that she was the owner of the seized property and seeking its recovery.

On 24 April 2001 the Town Court scheduled a date for a hearing.

On 30 May 2001 the applicant submitted a copy of an agreement of 11 January 2000 to the court in support of her claim. The agreement stated that the impugned property had been sold by the Educational Centre to the applicant.

The Bailiffs counter-claimed, seeking to invalidate the agreement as a forgery, alleging in particular that the agreement had not been shown to them at the time of seizure, that no payment had been made under it to the Educational Centre and that no reasonable explanation had been given by the applicant as to why she needed the seized property.

On 23 November 2004 the Town Court joined the proceedings in both the applicant ’ s and the Bailiffs ’ claims.

On an unspecified date the applicant applied to the Town Court requesting that consideration of the Bailiffs ’ claim be terminated.

On 2 March 2005 the Town Court rejected the applicant ’ s request as unfounded. The applicant appealed.

On 31 May 2005 the Rivne Regional Court of Appeal (“the Court of Appeal”) rejected the applicant ’ s appeal against the decision of 2 March 2005. The applicant appealed in cassation.

On 20 August 2007 the Chernivtsi Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 2 March and 31 May 2005.

On 17 January 2008 the Town Court found that the agreement of 11 January 2000 was a forgery and rejected the applicant ’ s claim as unfounded.

On 10 June 2008 the Court of Appeal endorsed the findings of the first-instance court.

On 12 November 2008 the Supreme Court rejected the applicant ’ s cassation appeal as unfounded.

Second set of proceedings (complaint concerning unlawful sale of the sized property)

In January 2002 the applicant lodged an administrative complaint with the Town Court against the Bailiffs, alleging that they had unlawfully sold the seized property and seeking damages in this regard.

On 26 November 2003 the Town Court rejected the applicant ’ s complaint as unsubstantiated.

On 2 July 2004 the Court of Appeal upheld the judgment of 26 November 2003.

On 28 March 2007 the Higher Administrative Court found that the claim should have been considered in the course of civil proceedings and remitted the case to the Town Court to take a new decision on the admissibility of the case.

The proceedings are pending.

Third set of proceedings (complaint concerning lack of access to the seized property)

In February 2003 the applicant lodged an administrative complaint with the Town Court against the Bailiffs, alleging that they had unlawfully prevented her from having access to the seized property.

On 27 November 2003 the Town Court rejected the applicant ’ s complaint as unsubstantiated.

On 30 January 2004 and 28 February 2007 the Court of Appeal and the Higher Administrative Court , respectively, upheld the judgment of 27 November 2003.

Fourth set of proceedings (claim for damages for unlawful retention of the seized property)

On 21 July 2003 the applicant instituted civil proceedings in the Town Court against the Bailiffs, claiming that her property had been unlawfully retained by the Bailiffs and seeking damages in this respect.

On 30 July 2003 the Town Court declared the claim inadmissible for the reason that the same case was pending before the court.

On 3 November 2003 the Court of Appeal upheld the decision of 30 July 2003.

On 6 April 2006 the Supreme Court quashed the decisions of 30 July and 3 November 2003, noting that the present claim was not the same as those submitted earlier by the applicant. It therefore remitted the case to the Town Court to take a new decision on the admissibility of the claim.

On 15 May 2006 the Town Court declared the claim admissible and scheduled a hearing.

On 12 September 2006 the Town Court , following a request by the applicant, ordered the Bailiffs to give her access to the seized property to enable her to specify the pecuniary claims.

On 11 December 2006 the Town Court allowed the applicant to take photographs of the seized property and film it.

On 26 February 2007 the applicant lodged an application to increase the amount of damages she was claiming.

On 17 May 2007 the Town Court left the application unexamined, stating that the applicant had failed to pay court fees in this respect.

On 9 July 2007 the Court of Appeal quashed the decision of 17 May 2007 as unfounded and remitted the case to the Town Court for further consideration.

The proceedings are still pending.

COMPLAINTS

1. The applicant complain ed under Articles 6 § 1 and 13 of the Convention that the proceedings in her cases were unfair, alleging in particular that the courts misinterpreted the facts and wrongly applied the law , while no other remedies were available.

2. The applicant complain ed under Article 6 § 1 of the Convention that the proceedings in her cases lasted too long.

3. The applicant complain ed under Article 9 of the Convention that her religious literature and other items of a religious nature were unlawfully seized by the Bailiffs.

4. The applicant complain ed under Article 1 of Protocol No. 1 that the Bailiffs unlawfully seized , retained, and sold her property .

THE LAW

1. The applicant complain ed that the first, second and fourth sets of proceedings in her cases lasted unreasonably long. She relied on Article 6 § 1 of the Convention which read s , in so far as relevant, as follows:

Article 6 (right to a fair hearing)

“1. In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

2. The Court has examined the remainder of the applicant ’ s complaints under Articles 6, 9, 13 of the Convention and Article 1 of Protocol No.1 and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they 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 Cou rt unanimously

Decides to adjourn the examination of the applicant ’ s complaint under Article 6 § 1 of the Convention concerning length of the first, second and fourth sets of proceedings ;

Declares the remainder of the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President