FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27229/02 by Aleksandr ZAYARNYY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 May 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 26 June 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 Aleksandr Zayarnyy, is a Ukrainian national who was born in 1939 and lives in the city of Donetsk . The Ukrainian Government (“the Government”) were represented by their Agent s , Mr s Valeriya Lutkovska and Mr Yuriy Zaytsev .

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

On 24 February 1998 the applicant instituted proceedings in the Kyivskyi District Court of Donetsk (hereinafter “the Kyivskyi Court ”) against his neighbours Mrs B. and Mr D. seeking compensation for pecuniary and non-pecuniary damage. The applicant alleged that his flat had been flooded on a number of occasions due to the defendants ’ negligence.

On 16 September 1998 the Kyivskyi Court found in part for the applicant.

On 26 October 1998 the Donetsk Regional Court (hereinafter “the Regional Court ”) quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court held that the first instance court had failed to examine all factual circumstances of the case and to establish properly the causal link between the damage caused and the actions of the defendants.

On 10 February 1999 the Kyivskyi Court found in part for the applicant.

On 29 March 1999 the Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court held that the first instance court had failed to take into account the instructions contained in its decision of 26 October 1998.

On 12 August 1999 the proceedings were resumed before the Kyivskyi Court . Following the applicants request, the court ordered a forensic technical examination in the case.

On 16 November 1999 the hearings were resumed. The applicant lodged an additional claim, which he modified on 15 February and 26 May 2000.

On 6 September 2000 the Kyivskyi Court found in part for the applicant.

On 9 October 2000 the Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court held that the first instance court had failed to determine whether Mr D. had been liable for the damage caused to the applicant ’ s flat, and to examine the grounds of the applicant ’ s claim for compensation for non-pecuniary damage.

On 2 July 2001 the Kyivskyi Court found in part for the applicant.

On 22 November 2001 the Donetsk Regional Court of Appeal upheld the decision of the first instance court.

On 15 April 2002 the panel of three judges of the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation finding no appearance of any procedural or substantive omissions in the applicant ’ s case.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings in his case . He also complained under Articles 6 § 1 and 13 of the Convention about the unfairness and outcome of the proceedings. He finally complained under Article 17 of the Convention that Mrs B. abused the rights set forth in the Convention .

THE LAW

1. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” re quirement, 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 and submitted that the domestic courts considered the case without substantial delays .

The applicant disagreed and stated that the proceedings had not been conducted with sufficient diligence.

The Court notes that in the present case the proceedings began on 24 February 1998 and ended on 15 April 2002 . They therefore lasted less than four years and two months for three levels of jurisdiction .

The Court recalls that the “reasonableness” of the 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).

Turning to the facts of the present case, the Court notes that the applicant ’ s claim was three times remitted for a fresh consideration by the Regional Court following his respective appeals. Al though 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). In addition, in November 1999 the applicant lodged an addition claim and twice modified it, as well as forensic technical examination was conducted upon his request, which caused adjournments of the hearings.

The Court further notes that the protracted length of the proceedings was also due to the conduct of the domestic judicial authorities and repetitive re-examination of the case. Although the Court is not in a position to analyse the quality of the case-law of the domestic judicial authorities , it observes that, since remittal is usually ordered because of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see Wierciszewska v. Poland , no. 41431/98, § 46 , 25 November 2003 ).

At the same time, the Court notes that all the domestic courts examined the applicant ’ s claim as well as his appeals and a cassation appeal without delay s which could be in breach of “reasonable time” requirement, laid down in Article 6 § 1 of the Convention .

R egard being had to all the circumstances, the Court concludes that in the present case the overall length of the proceedings was not excessive and cannot be considered unreasonable ( see Zherdin v. Ukraine (dec.), no. 53500/99, 1 February 2005) .

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complain ed under Articles 6 § 1 and 13 of the Convention about the outcome and unfairness of the proceedings in his case . Under the same provision s , he complain ed that the judges of the Donetsk Regional Court of Appeal lacked impartiality as the brother of Mrs B. allegedly worked as a judge in that court.

In the light of all the materials in its possession and in so far as the matters complained of fall within its competence, t he Court notes that the applicant enjoyed the right to adversarial proceedings with the participation of interested parties. Within the framework of the proceedings the applicant was able to introduce all necessary arguments in defence of his interests, and the judicial authorities gave them due consideration.

As to the applicant ’ s allegations of the judges ’ lack of impartiality, the Court notes that he failed to adduce any evidence either to prove that Mrs B. ’ s brother was a judge of the Donetsk Regional Court of Appeal or to demonstrate that there was any appearance of bias on the part of the judges. Furthermore , the applicant did not challenge these judges under the ordinary procedure available under Ukrainian law.

It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

3. The applicant finally complain ed that Mrs B. abused the rights set forth in the Convention and invokes Article 17 of the Convention.

The Court considers that this complaint does not concern an interference with the applicant ’ s Convention rights by the authorities of the respondent State and is, therefore, incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3.

It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention ;

Declares the application inadmissible.

Claudia Westerdiek P ee r Lor e nz e n Registrar President