FIFTH SECTION

DECISION

Application no. 9908/05 Igor Petrovich POGASIY

a nd Vera Prokofyevna POGASIY against Ukraine

The European Cou rt of Human Rights (Fifth Section) , sitting on 24 January 2012 as a Committee composed of:

Mark Villiger , President, Ganna Yudkivska , André Potocki , judges, and Stephen Phillips, Deputy Section Registrar .

Having regard to the above application lodged on 10 February 2005,

Having deliberated, decides as follows:

THE FACTS

The applica t ion was lodged by two Ukrainian nationals , Mr s Vera Prokofyevna Pogasiy (“the first applicant”) and Mr Igor Petrovich Pogasiy (“the second applicant”) , mother and son, who were born in 1939 and 1963 , respectively . The second applicant lives in Kirovograd .

The applicants were represented by Mr Koptelin, a lawyer practicing in Kirovograd . The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.

In June 2010 the first applicant died, Mr Kop t elin having informed the Court that the second applicant and Ms Zasikan (the first applicant’s daughter) wished to pursue her part of the application.

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

1. First set of proceedings

On an unspecified date Mr P. ( the applicant s’ former husband and father, respectively) transferred a title to a garage to Mr G . Following that, t he local authorities registered Mr G. as a new owner of the garage.

In March 2000 the applicants lodged a claim with the Leninsky y District Court of Kirovograd (“the District Court”) against Mr P., Mr G. and the local authorities, claiming their title to a part of the garage.

The proceedings are still pending before that court, following several remittals of the case for fresh examination by the appellate and cassation courts.

2. Second set of proceedings

According to the applicants, in December 1998 they lodged a claim with the District Court against Mr P., claiming a title to a part of the allegedly co-owned flat. On an unspecified date the court returned the claim unexamined.

On 11 February 2000 the applicants re-lodged the claim .

By the final ruling of 30 August 2007 , the Mykola y iv Regional Court of Appeal, acting as a court of cassation , returned the claim unexamined due to the applicants’ failure to comply with procedural formalities .

3. Third set of proceedings

On 30 December 2000 the applicants lodged a claim with the District Court against Mrs P., to whom Mr P. gifted the impugned flat in the meantime, challenging the lawfulness of the contract of gift and claiming their title to a part of the flat.

On 27 August 2003 the co urt allowed the claim.

On 18 March 2004 the Kirovograd Regional Court of Appeal quashed t he above judgment. It found that the impugned flat had belonged solely to Mr P. as he had bought it outside of the marriage with the first applicant and, therefore, the contract of gift had been lawful. On 16 August 2004 the Supreme Court upheld that judgment.

Subsequently the second applicant requested the District Court to allow him to consult the case file in order to submit additional documents to the Court, but the District Court dismissed his requests.

COMPLAINTS

The applicants complain ed under Article s 6 § 1 and 13 of the Convention about the length of the first and the second sets of the proceedings.

They also complained under the same provisions about the unfairness and unfavourable outcome of the proceedings, the courts’ bias and failure to examine the applicants’ claim allegedly lodged in 1998, lack of public hearing on 16 A ugust 2004 and the length of the third set of the proceedings. The applicants further complained under Article 1 of Protocol No. 1 on account of the outcome of the proceedings and invoked Articles 1, 8 and 14 of the Convention. Finally, the second applicant alleged a breach of Article 34 of the Convention as the District Court had dismissed his requests to consult the case file in order to submit additional documents to the Court.

THE LAW

1. The Court notes that i t has not been disputed by the parties that the second applicant and Ms Zasikan are entitled to pursue the first applicant’s part of the application and the Court sees no reason to hold otherwise (see, for instance, Svistun v. Ukraine , no. 9616/03, §§ 13-14, 21 June 2007; and Kalyuk v . Ukraine (dec.), no. 8809/07, 22 June 2010). However, reference will still be made to the first applicant throughout the ensuing text.

2. The applicants complained under Articles 6 § 1 and 13 of the Convention about the length of the first and the second sets of the proceedings. The complaint falls to be examined solely under Article 6 § 1 which provides , in so far as relevant, as follows:

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

On 3 June 2011 the Government submitted a unilateral declaration with a view to resolving the issue raised by the complaint and requested the Court to strike the application out in accordance with Article 37 of the Convention. The declaration read as follows:

“The Government of Ukraine acknowledge the excessive duration of the consideration of the applicant[s’] case before the national courts .

I, Valeria Lutkovska , the Government Agent before the European Court of Human Rights , declare that the Government of Ukraine offer to pay ex gratia 4,000 (four thousand) euros to Mrs Vera Prokofyevna Pogasiy and Mr Igor Petrovych Pogasiy .

The Government therefore invite the Court to strike the application out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

Th e sum ex gratia is to cover any non ‑ pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable , and converted into the national currency of the respondent State at the rate applicable on the date of settlement . It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

This payment will constitute the final resolution of the case”.

The applicants in substance disagreed with the declaration having claimed higher amounts than that offered by the Government .

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under paragraph 1 (a), (b) or (c) of that Article. I n particular , Article 37 § 1 (c) enables the Court to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application” .

It also recalls that , in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wish es the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law ( see, for instance, Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI ).

The Court has establish ed in a number of cases, including those against Ukraine (see, for instance, Pavlyulynets v. Ukraine , no. 70767/01, §§ 52-53 , 6 September 2005; Moroz and Others v. Ukraine , no. 36545/02, §§ 61-62 , 21 December 2006; and Golovko v. Ukraine , no . 39161/02, § § 64-65 , 1 February 2007 ) , its pract ice concerning complaints about violation s of the right to a hearing within a reasonable time.

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the c ompensation offered, which is consistent with the amounts awarded in similar cases by the Court, the Court considers that it is no longer justified to continue the examination of this part of the application.

I t is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of this part of the application (Article 37 § 1 in fine of the Convention). Accordingly, this part of the application should be struck out of the list.

3. Having carefully examined the remainder of the applicants ’ 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 .

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s unilateral declaration in respect of the applicants’ complaint about the excessive length of the first and the second sets of the proceedings;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Stephen Phillips Mark Villiger Deputy Registrar President