SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63158/00 by Dmitriy Dmitriyevich TIMOTIYEVICH against Ukraine

The European Court of Human Rights (Second Section), sitting on 18 May 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mr A.B. Baka , Mrs A. Mularoni, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 29 June 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court's partial admissibility decision of 25 March 2003,

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 Dmitriy Dmitriyevich Timotiyevich, is a Ukrainian national who was born in 1938 and lives in Krasnoyarskoye, Ukraine.

A. The circumstances of the case

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

1. Proceedings before 11 September 1997

On 2 September 1988 the applicant lodged complaints with the Dobropolye City Court (the “DCC”) against the Mining Company “Imeni XXI syezda KPSS” in Dobropolye (the “MCD”), seeking compensation for the damage caused to his house by the work of underground mining machines.

On 21 November 1988 the DCC suspended the proceedings in the case and ordered an expert examination of the state of the applicant's house. Subsequently, the DCC ordered the second defendant in the case, the farm association “Dobropolsky” (the “FAD”), to repair the applicant's property.

Between November 1989 and May 1994, the case was re-examined on several occasions by the DCC and the Donetsk Regional Court (the “DRC”).

By a judgment of 30 May 1994, the DCC declared the defendants liable for the damage caused to the applicant's house. It also ordered the defendants to build a new house for the applicant, equivalent to that which had been damaged, by 1 July 1995, as well as compensation for damage. On 11 July 1994, the DRC upheld the judgment of 30 May 1994, which on that same day became final.

Because of the non-enforcement of the judgment of 30 May 1994, in September 1995 the applicant lodged complaints with the DCC against the MCD and the FAD, seeking to modify the enforcement procedure. The case was heard on several occasions by the DRC and the DCC. Finally, by a judgment of 29 March 1996, the applicant was awarded 6,000,000 Ukrainian karbovantsi [The transitional currency of Ukraine which existed before 1996; UAH 60 (approximately EUR 30 in 1996)] in compensation for non-pecuniary damage.

By a ruling of 8 April 1996, in execution of the judgment of 30 May 1994, the DCC ordered the defendants to reimburse the applicant's expenditure in the amount of 3,172,746,000 Ukrainian karbovantsi [UAH 31,727 (approximately EUR 16,000 in 1996)] in compensation for the maintenance of and repairs to the house. It also decided that the applicant had a right to build a new house for which he should receive compensation. On 13 May and 10 June 1996, the DRC upheld the judgment of 29 March 1996 and the ruling of 8 April 1996.

On 17 July 1996 the Presidium of the DRC allowed the protest of the Prosecutor of the Donetsk Region, quashed the decisions of 8 April and 10 June 1996, and remitted the case for fresh consideration.

In October 1996 the MCD and the FAD lodged a petition with the DCC, seeking to suspend the enforcement of the judgment of 30 May 1994. On 14 November 1996 the DCC dismissed this petition and upheld the judgment of 30 May 1994. It also ordered the MCD and the FAD to reimburse the applicant, before 14 February 1997, UAH 70,054.70 [EUR 10,687.56 ] for the expenses relating to the construction of a new house.

The applicant appealed in cassation to the DRC. On 13 January 1997 the Donetsk DRC upheld the DCC's decision of 14 November 1996 and rejected the applicant's cassation appeal as being unsubstantiated, whereupon the decision of 14 November 1996 became final.

On 31 March 1997 the DCC attached the MCD's accounts in the sum of UAH 35,027 [EUR 5,343.73 ], in execution of its judgment of 30 May 1994 and the decision of 14 November 1996.

On 11 April 1997 the MCD requested the court to be allowed to execute the judgment in three monthly instalments.

On 14 April 1997 the DCC quashed its attachment order and issued another on 19 May 1997, when the MCD's bank accounts were found to contain UAH 35,027 [See reference no. 4].

On 2 September 1997 the Acting Prosecutor of the Donetsk Region lodged a protest with the Presidium of the DRC, seeking the initiation of supervisory review proceedings in the applicant's case.

On 10 September 1997 the Presidium of the DRC allowed the protest of the Acting Prosecutor, quashed the decisions of 14 November 1996 and 13 January 1997, and remitted the case for fresh consideration to the DCC.

On 10 September 1997 the applicant complained about this decision to the President of the Supreme Court, with a view to initiating a further supervisory review in his case. On 6 November 1997 the Supreme Court declined to consider the applicant's complaints.

2. Proceedings after 11 September 1997

On 30 September 1997 the Acting Prosecutor of the Donetsk Region lodged a second protest, seeking the initiation of supervisory review proceedings relating to the decisions of 14 November 1996 and 13 January 1997. This protest was rejected by the Presidium of the DRC.

On 15 December 1997 the DCC suspended the enforcement proceedings in the applicant's case due to the initiation of the first supervisory review.

On 15 May 1998 the Prosecutor General lodged a new protest with the Supreme Court, seeking the initiation of supervisory review proceedings in the applicant's case. By a resolution of 10 June 1998, the Supreme Court quashed the judgment of 30 May 1994. It also remitted the case to the DCC for fresh consideration.

On 13 July 1998 the DCC resumed jurisdiction in the case.

On 23 July 1998 the applicant applied to the DCC to suspend the proceedings due to his application before the European Court of Human Rights.

On 24 July 1998, as the parties failed to appear before the DCC, the hearing was adjourned to 16 November 1998, and, for the same reason, again until 7 December 1998.

On 7 December 1998 the applicant informed the DCC that he could not attend the hearing due to illness.

On 7 December 1998, 9 February and 16 March 1999 the applicant failed to appear before the DCC. The proceedings were adjourned to 19 April 1999.

On 12 April 1999 the applicant informed the DCC that he could not attend the hearing in his case due to its consideration by the European Court of Human Rights.

On 19 April 1999 the hearing was adjourned to 4 May 1999 due to the applicant's failure to appear before the DCC. On 17 May 1999 the hearing was adjourned to 7 June 1999 for the same reason.

On 7 June 1999 the DCC decided not to consider the applicant's claims as he had failed to appear before the court on 16 November and 7 December 1998, 9 February, 16 March, 19 April, and 4 and 17 May 1999.

On 1 September 1999 the Presidium of the DRC allowed the protest of its President and quashed the ruling of 7 June 1999, remitting the case for fresh consideration to the same court. The Presidium also gave a separate ruling as to the length of the proceedings in the applicant's case and the fact that the applicant had not been duly informed about the hearings in his case and therefore had been unable to attend them.

On 26 October 1999 the DCC fixed a hearing for 2 November 1999.

On 2 November 1999 the DCC adjourned the hearing due to the failure of the defendants to appear before it.

On 12 November 1999 the applicant lodged a petition with the President of the DCC, challenging the judge hearing his case. The proceedings were accordingly adjourned until 16 November 1999 when the applicant's challenge was rejected as being unsubstantiated.

On 3 December 1999, 17 January and 11 February 2000 the applicant failed to appear before the DCC.

On 25 February 2000 the parties failed to appear before the DCC. On the same date the DCC decided not to consider the applicant's claims because of his failure to appear before it. On 2 August 2000 the President of the DRC allowed the protest of his Deputy and quashed this ruling, the case being remitted for fresh consideration.

On 25 August 2000 the DCC resumed jurisdiction in the case. The hearing was scheduled for 11 September 2000.

In the course of a hearing on 11 September 2000, the applicant said that he had no intention of appearing before the DCC. He also requested that the jurisdiction over the case be changed and the case be referred to a district court in Krasnoarmeysk. The hearing was adjourned to 26 September 2000 in view of the need to hear the applicant's explanations on this point.

On 26 September 2000 the applicant failed to appear before the DCC. The hearing was adjourned to 6 October 2000.

On 6 October 2000 the applicant again requested the change in courts. As a result, the DCC did not consider the applicant's substantive claims.

On 2 November 2000 the applicant petitioned the DRC for a transfer of jurisdiction to the Krasnoarmeysk City Court. On 27 November 2000 the DRC quashed the DCC ruling of 6 October 2000 and remitted the case for fresh consideration to it.

On 1 December 2000 the DRC rejected the applicant's transfer petition as being unsubstantiated.

On 5 January 200 1 the applicant's request to the President of the DRC for a supervisory review of his case was rejected as being unsubstantiated. On 21 March 2001 a similar request by the applicant to the President of the Supreme Court was rejected as being unsubstantiated.

On 13 April and 24 May 2001 the DCC adjourned the proceedings in the case due to the applicant's failure to appear before it. On 18 June 2001 the applicant again failed to appear before the DCC. As a result, the DCC did not consider the applicant's substantive claims. The applicant did not appeal.

On 19 June 2001 the applicant requested the DCC to suspend the proceedings in his case due to the consideration of his application by the European Court of Human Rights.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the excessive duration of the civil proceedings in his case. He also complains that the proceedings in his case were unfair insofar as the final judgment given in his favour was quashed and no final decision has been given to date.

Referring to Article 1 of Protocol No. 1 to the Convention, the applicant complains about the infringement of his property rights caused by the quashing of the final judgment awarding him compensation. He also complains that he suffered damage as a result of the continuous state of uncertainty over the fate of his property.

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

The Government submitted that the Court's competence in the instant case only extends to events in so far as they took place after 11 September 1997, the date of the entry of the Convention into force in respect of Ukraine.

The applicant disagreed. In particular, he stated that, in assessing the length of the proceedings in his case, the Court should take note of events which took place before Ukraine's ratification of the Convention.

The Court notes that the proceedings in issue began in September 1988, so the part of the proceedings about which the applicant complains falls outside its jurisdiction ratione temporis . However, the Court may take note of the state of the proceedings on 11 September 1997 when examining the complaint as a whole (see, mutatis mutandis , Bagetta v. Italy , 25 June 1987, Series A no. 119, p. 32, § 20).

II. THE MERITS OF THE APPLICANT'S CLAIMS

A. Complaints under Article 6 § 1 of the Convention

The applicant complains about the unreasonable length of the proceedings in his case and a lack of fairness in its consideration. In particular, he complains about the quashing of the final judgment given in his favour by the Supreme Court of Ukraine upon the protest lodged by the Prosecutor General. He refers to Article 6 § 1 of the Convention, which in so far as relevant provides:

“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...”

1. Complaint about the length of the proceedings

(a) Submissions of the parties

The Government maintained that the proceedings in the case were complex and that there were no significant periods of delay that could be attributed to the domestic authorities. In particular, they stated that it was the applicant who was responsible for the delays in the case. They further mentioned that the protraction of the proceedings from 30 September 1997 until 10 June 1998 was caused by the applicant's petitions to various public prosecutors with a view to initiating supervisory review proceedings in his case. As to the period between 13 July 1998 and 18 June 2001, the Government maintained that they could not be held responsible for the applicant's failure to appear before the court. The applicant had apparently been duly notified about the dates and times of some 24 hearings, and was warned about the consequences of his failure to attend. Nevertheless, he often did not appear.

The applicant disagreed. In particular, he mentioned that the judgment of 30 May 1994 was never enforced. Furthermore, it was quashed on 10 June 1996 by the Supreme Court and therefore the proceedings in his case had not ended. As to his complaints to the public prosecutors with a view to initiating supervisory review proceedings in his case, the applicant mentioned that these were the only legal remedies that were available to him after the judgment of 30 May 1994 had been quashed. He also claimed that he could not be present at 19 out of the 24 hearings in his case as he was not duly informed about their dates. However, he was present at all hearings of which he was duly informed. In this connection, the applicant referred to the resolution of the Presidium of the DRC of 1 September 1999, where the court found that he had not been duly informed about the date and place of hearings, as required by Article 172 of the Code of Civil Procedure. The applicant further mentioned that a son of one of the directors of the defendants in the case was a President of the DCC and, therefore, he had doubts as to the impartiality of that court. For that reason, he requested that the jurisdiction over the case be transferred to a different court.

(b) The Court's assessment

The Court notes that the proceedings at issue began in September 1988 and were terminated on 18 June 2001 (their overall duration is therefore almost 12 years and 9 months). It considers that the proceedings in the applicant's case were continuous throughout this period as the judgment of 30 May 1994 was never enforced (until it was quashed on 10 June 1998), i.e. the enforcement proceedings form an integral part of the calculation as to the overall length of the proceedings in the case.

The Court notes that a part of the applicant's complaints about the length of the proceedings falls outside the Court's competence ratione temporis , as the Convention entered into force in respect of Ukraine on 11 September 1997. Consequently, the period to be taken into account begins on 11 September 1997. The duration of this period was therefore 3 years and 9 months with certain minor periods of delay which could be attributed to the domestic authorities. During this period, there were no proceedings for 9 months in the case, which was discontinued on 7 June until 1 September 1999 and on 25 February until 2 August 2000, due to the parties' failure, particularly the applicant's, to appear in court.

The Court recalls 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).

(i) Complexity of the case

In the instant case, the Court considers that the subject matter of the litigation was not especially complex, but involved some complications as to the establishment of the amount of compensation to be paid to the applicant.

(ii) The conduct of the State authorities

The Court notes that there were certain delays attributable to the judicial authorities caused by various remittals. However, the Court considers that the relevant State authorities were not primarily responsible for the length of the proceedings in the instant case (see Ciricosta and Viola v. Italy , no. 19753/92, § 28, judgment of 4 December 1995).

(iii) What was at stake for the applicant?

In view of the applicant's particular financial situation and living conditions, the Court considers that what was at stake for him would have required diligence on the part of the State authorities. However, in view of his own behaviour, obviously the applicant did not view the matter as urgent (see below).

(iv) The conduct of the applicant

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, no . 26614/95, § 66, judgment of 15 October 1999). The Court observes that the proceedings in the Dobropolye City Court were reinitiated on 13 July 1998 and were discontinued by that court on 18 June 2001. During this period the applicant failed to appear before the court on 17 occasions. Contrary to the applicant's submission, it is not established that he was unaware of all of the hearing dates. He also challenged the judges and requested a change in the jurisdiction of the case on 6 occasions. The proceedings were consequently adjourned with a view to examining the applicant's petitions. Moreover, the applicant himself attempted to initiate supervisory reviews on 3 occasions.

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). Furthermore, the Court observes that the courts hearing the case attempted to streamline the proceedings and to encourage the applicant to appear before them.

In conclusion, regard being had to all the circumstances of the case, the length of the proceedings after 11 September 1997 and, more particularly, to the conduct of the applicant, the Court agrees with the Government that the primary responsibility for the delay in the proceedings during the relevant period lay with the applicant (see Ciborek v. Poland , no. 52037/99, § 46, judgment of 4 November 2003). Furthermore , in the Court's view, the length of the proceedings after 11 September 1997 did not in itself exceed what may be considered “reasonable” (see Pedersen and Baadsgaard v. Denmark , no. 49017/99, § 44, judgment of 19 June 2003).

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. Complaint about the fairness of the proceedings

The Government consider that the supervisory review of the judgment in the applicant's favour did not contradict the principles of the rule of law and legal certainty. They maintained that the protest could not be used in an arbitrary manner as this procedure was transparent, foreseeable and used by citizens as an effective mechanism for appeal against judicial decisions. Moreover, the Government pointed out that the applicant pursued supervisory review proceedings on his own motion, having himself petitioned the Prosecutor General.

The applicant disagreed. In particular, he stressed that the final decision given in his favour was quashed and, therefore, the principle of legal certainty was infringed.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Complaints under Article 1 of Protocol No. 1 to the Convention

The applicant complains that, by quashing the final judgment of 30 May 1994 which recognised his right to be compensated for the expense of building a new house, there has been an unlawful interference with his right to the peaceful enjoyment of his possessions. He refers to Article 1 of Protocol No. 1 to the Convention, which insofar as relevant provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...”

The Government submitted that the present application cannot be compared to the judgments in the cases of Brumărescu v. Romania ([GC], no. 28342/95, ECHR 1999-VII) or Sovtransavto Holding v. Ukraine (no. 48553/99, ECHR 2002-VII). In particular, they mentioned that the judgment in the present case was quashed and the case remitted for fresh consideration with the aim of restoring the applicant's rights which had been infringed by an unlawful judgment. Also, by quashing the judgment of 30 May 1994, the Supreme Court rectified the errors of the first instance court and the Court of Cassation which had created obstacles to restoring the applicant's pecuniary rights. They maintained that the quashing of the judgment of 30 May 1994 did not lead to a deterioration in the applicant's rights.

The applicant disagreed. He maintained that the quashing of this final judgment was to his disadvantage. In particular, he stated that for a long time he has been living in premises which are unfit for habitation. He also mentioned that he and his wife have suffered substantially due to the prolonged uncertainty over the outcome of the proceedings in his case.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints concerning the fairness of the proceedings and an infringement of his property rights;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President