FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18428/02 by Nikolay Sergeyevich GAYVORONSKIY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Volodymyr Butkevych , Margarita Tsatsa-Nikolovska , Rait Maruste , Mark Villiger , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 5 March 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

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 Nikolay S ergeyevich Gayvoronskiy, is a Ukrainian national who was born in 1949 and lives in Dzhankoy. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Z. Bortnovska , succeeded by Mrs V. Lutkovska and Mr Y. Zaytsev .

A. The civil dispute concerning construction of a house

1. Background facts

Pursuant a contract concluded in June 1992, the applicant advanced 40,000 karbovantsi [1] to the State-owned “Zarichny” Farm ( Радгосп «Зарічний» ) for construction of a residential house for his family. According to the text of the contract, the remainder of the funds were to be borrowed from the U.S.S.R. State bank [2] . The contract did not specify whose responsibility it was to apply for the loan. Neither party secured the loan or otherwise financed the remainder of the construction costs.

The plot of land located at the address specified in the construction contract was never formally assigned to the applicant. In 1993 the municipality allocated the applicant a plot for the construction of a house at a different address. He used this plot for growing vegetables.

In 1993 the unfinished house, located at the address specified in the construction contract, was allocated to the R. family, who had advanced funding for the construction of a house in 1991. Having invested their personal funds, the R. family continued the construction and moved into the house.

By 1999 the Zarichny Farm was privatized, its shares having been distributed between employees and other private persons, and transformed into a collective agricultural enterprise ( Колективне сільськогосподарське підприємство ).

2. Judicial proceedings

In June 1994 the applicant instituted civil proceedings in the Dzhankoy Court ( Джанкойський міський суд Автономної республіки Крим ) , seeking to oblige the Zarichny Farm to fulfil the contract, namely, to finish the construction of the house located at the address specified in it. The R. family were summoned to the proceedings as a third party.

The Zarichny Farm lodged a counterclaim, seeking to have the contract with the applicant annulled.

On 10 June 1997 the court awarded the house, allocated to the R. family, to the applicant and dismissed the Zarichny Farm ’ s counterclaim. This judgment was not appealed against, became final and the enforcement proceedings were instituted to effect the house transfer to the applicant.

The R. family refused to leave the house, referring to the lack of any decision in respect of their rights, particularly, on reimbursement of their investments and provision of an alternative residence. The applicant instituted separate eviction proceedings against the R. family.

On 20 March 1998, while the eviction proceedings were still pending, the Presidium of the Supreme Court of the Autonomous Republic of the Crimea (“the Supreme Court of the ARC”; Верховний Суд Автономної Республіки Крим ) quashed the judgment of 10 June 1997, following a supervisory protest lodged by the Deputy Prosecutor of the Autonomous Republic of Crimea and remitted the case for a fresh consideration. The court instructed the first-instance court to explore further whether the applicant could claim entitlement to the house at the address in question, particularly, in view of the unclear contractual language concerning an obligation to obtain a bank loan for construction and considering that the applicant had also been allocated a plot of land for construction under a different address.

Between 12 May and 19 August 1998 the proceedings were suspended at the applicant ’ s request in view of his business trip.

In February 1999 the applicant amended his claims, seeking punitive damages from the Zarichny Farm in addition to the house transfer and joining his eviction claims to the main proceedings.

On 25 February 1999 the court dismissed the applicant ’ s claims and the Farm ’ s counterclaim. It found that the R. family had lawfully obtained the house in issue and that the applicant ’ s house was due to be located at another address. The court also dismissed the Farm ’ s counterclaim. The applicant appealed in cassation.

On 19 May 1999 the Supreme Court of the ARC quashed this judgment, having found the first-instance court ’ s analysis insufficient, particularly as regards the legal nature of the construction contract and the parties ’ obligations to secure a bank loan, and assumed jurisdiction over the case, referring to its complexity and delay in resolution.

On 21 December 1999 the Supreme Court of the ARC found that an expert assessment was necessary to establish the value of the disputed house and the applicant ’ s contribution in the new hryvnya currency and according to the current prices. The court obliged the defendant to pay for the assessment.

In 2000 the Zarichny Farm was reorganized, two entities, the Agricultural Cooperative “Zarichny” (“the Zaricnhy Cooperative”; Сільськогосподарський виробничий кооператив «Зарічний» ) and the “K.P.A” CJSC (ЗАТ «Селянська промислова артіль» ) having subsequently emerged on its basis.

As the fee for the expert assessment commissioned by the court remained unpaid owing to the defendant ’ s reorganization and financial difficulties of the emerging entities (i.e., the Zarichny Cooperative ’ s bank account had been blocked by the authorities), on 23 October 2000 the Supreme Court of the ARC ordered to advance the respective payment from its own budget.

In April 2001 the expert assessment was completed and the proceedings were resumed. The Supreme Court of the ARC determined that the Zarichny Cooperative was the Zarichny Farm ’ s successor in respect of the obligations vis-à-vis the applicant and summoned it into the proceedings.

In May 2001 the applicant altered his claim. He informed the court that, having obtained other lodging, he was no longer interested in the construction of a house and demanded termination of the contract and compensation of damage.

The defendant amended its counterclaim, advancing new justifications for the annulment of the contract.

On 21 May 2001 the Supreme Court of the ARC annulled the contract, having found that its provisions did not comply with the law applicable at the material time. Based on the findings of the expert assessment, it awarded the applicant against the Zarichny Cooperative 36,523.24 hryvnyas (UAH) as the equivalent to his investment into the construction and UAH 365.23 in court fees. The applicant appealed in cassation to the Supreme Court of Ukraine, seeking a higher payment.

On 24 October 2001 the Supreme Court heard the case on the merits and upheld the judgment of 21 May 2001.

3. Enforcement proceedings

On an unspecified date the enforcement proceedings were instituted to collect the debt due to the applicant pursuant the judgment of 21 May 2001. On 9 August 2005 the State bailiffs forwarded the enforcement writ to the trustee in bankruptcy, owing to the fact that the debtor had been declared bankrupt and subject to liquidation. The applicant did not inform the Court whether and to what extent the judgment had been eventually enforced.

B. Other events

In 1995 the four members of the applicant ’ s family obtained privatization certificates entitling them to privatize a share of the State property. The applicant alleges that they were unable to invest these certificates in a satisfactory manner on account of the unlawful conduct of the authorities.

In 2002 the applicant had several arguments with post-office employees concerning the procedure of sealing and stamping his correspondence to the Court. In addition, a delivery slip concerning one of his registered letters to the Court was lost.

In 2005 the Zarichny Cooperative allegedly failed to produce at the applicant ’ s request a document certifying that he had been formerly employed by the Zarichny Farm.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the judicial proceedings in his dispute concerning the construction of a house and an unfair hearing and outcome thereof.

He also complained under Article 8 § 1 of the Convention about the alleged interference of the post staff with his correspondence with the Court.

In 2005, after the case had been communicated to the respondent Government and they had provided observations on the admissibility and merits of the applicant ’ s complaints, the applicant amended his claims, complaining under Article 6 § 1 of the Convention that the State authorities had failed to enforce the judgment of 21 May 2001. He also complained, without reference to any Convention provisions, that the Zarichny Cooperative had refused to certify the fact of his former employment and that his family had been unable to obtain a fair share in the State property in exchange for their privatization certificates.

THE LAW

1. The applicant complained about the excessive leng th of his judicial proceedings against the Zarichny Farm, initiated in June 1994 and ending in October 2001. He invoked Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Government submitted that the period before 11 September 1997 was outside the Court ’ s temporal jurisdiction. As regards the remainder of the period in question, it was not excessive, especially in view that the case was complex and the domestic judicial authorities handled it with diligence. They further maintained that the applicant was responsible for several delays, particularly, caused by his request for a three-month suspension of the proceedings in 1998 and by modifications of his claims.

The applicant disagreed. He maintained that the delay in consideration of his claims resulted from the domestic courts ’ failure to assess the circumstances of the case properly and from their procedural omissions.

The Court notes that the applicant instituted the proceedings in question in 1994. However, the period to be taken into consideration began only on 11 September 1997, when the Convention entered into force in respect of Ukraine , and ended on 24 October 2001. This period therefore lasted four years and one month for three levels of jurisdiction, including the period of non-enforcement of the final judgment of 10 June 1997 until it was quashed (20 March 1998).

The “reasonableness” of the length of the proceedings in the applicant ’ s case must be assessed in accordance with 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).

The Court finds that the proceedings at issue, which concerned the construction of a family house, were of some importance for the applicant. Nonetheless, the applicant ’ s submissions do not disclose any ground for the domestic courts to handle the applicant ’ s claims with particular urgency vis ‑ à-vis other cases pending before them.

The Court further finds that the dispute was of certain complexity. The judicial authorities had to decide not only on the applicant ’ s claims concerning performance of an ambiguously phrased real-estate construction contract, which were amended several times, but, in addition, on the counterclaims, also amended in the course of the proceedings. Moreover, the proceedings took place on the foreground of the rapidly changing objective circumstances, such as the introduction of the new hryvnya currency, the fluctuation of the real-estate construction prices and two reorganizations of the defendant-farm, including its privatization.

The Court considers that the judicial authorities can be held responsible for certain delays in examining the applicant ’ s claims, particularly, for repeated reconsiderations of the matter, including after the quashing of a final judgment. The Court also notes that on 21 December 1999 the proceedings were suspended for one year and four months pending the outcome of an expert assessment. At the same time, the Court takes into account that the Supreme Court of the ARC took certain measures to expedite the proceedings, particularly, by assuming jurisdiction over the case as a first-instance court and advancing its own funding for the expert assessment.

As regards the applicant ’ s conduct, the Court notes that, although the applicant cannot be reproached for exercising his procedural rights, apart from being responsible for a three-month suspension of the proceedings in 1998, he contributed to their overall duration by modifying claims and lodging appeals. The Court also notes that the judgment of 10 June 1997 remained unenforced until quashed in connection with the pending eviction proceedings, which the applicant brought against the R. family only after this judgment had been taken.

In view of all the above, the Court finds that, on balance, the duration of the judicial proceedings in the applicant ’ s case did not exceed what may still be considered “reasonable” (see e.g., Zherdin v. Ukraine (dec.), no. 53500/99, 1 February 2005 and Belukha v. Ukraine , no. 33949 /02, §§ 66-67 , 9 November 2006 ).

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

2. The applicant further complain ed about the unfair hearing and outcome of the proceedings, interference with his correspondence, non ‑ enforcement of a judgment given against a private company, the failure of this company to issue him a document at his request, and about inability of his family to obtain a fair share in the State property in exchange for privatization certificates. He invoked Articles 6 § 1 and 8 of the Convention.

Having carefully examined the applicant ’ s submissions in the light of all the material in its possession and insofar 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 likewise be declared inadmissible as being manifestly ill-founded, pursuant to Artic le 35 §§ 3 and 4 of the Convention .

3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible .

             Claudia Westerdiek Peer Lorenzen Registrar President

[1] . About 150 ECU in t ransitional currency of Ukraine , which was in circulation until 1996. According to the estimates made at the material time, this am ount was some one-fourth of the entire construction budget.

[2] . T he U.S.S.R. had officially ceased to exist prior to the conclusion of the contract, in 1991.