FIFTH SECTION

CASE OF PARINOV v. UKRAINE

( Application no. 48398/17 )

JUDGMENT

STRASBOURG

10 December 2020

This judgment is final but it may be subject to editorial revision.

In the case of Parinov v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Stéphanie Mourou-Vikström , President, Ganna Yudkivska , Lado Chanturia , judges, and Martina Keller , Deputy Section Registrar ,

Having deliberated in private on 12 November 2020 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 48398/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Borys Mytrofanovych Parinov (“the applicant”), on 30 June 2017.

2 . The applicant was represented by Mr Y.L. Boychenko , a lawyer practising in Strasbourg. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice.

3 . The applicant complained under Articles 6 and 13 of the Convention that the length of proceedings related to his share in a company had been excessive, and also complained under Article 1 of Protocol No. 1 to the Convention that as a result of those proceedings, he could not recover his share in a company.

4 . On 27 March 2018 notice of the complaints concerning the alleged violation of Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 on account of the duration of the proceedings in his case was given to the Government, and the complaint about the alleged lack of impartiality of the liquidation manager raised under Article 6 § 1 of the Convention was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5 . The Government objected to the examination of the application by a Committee, but provided no reasons. Having considered the Government ’ s objection, the Court rejects it (see, in respect of a similar approach, Lada v. Ukraine [Committee], no. 32392/07, § 4, 6 February 2018; Geletey v. Ukraine [Committee], no. 23040/07, § 4, 24 April 2018; and Braylovska v. Ukraine [Committee], no. 14031/09, § 5, 6 June 2019).

THE FACTS

6 . The applicant was born in 1953 and lived in Lugansk. He died on 16 September 2018. His son and wife expressed their wish to pursue the application in his stead (see paragraphs 40-43 below).

7 . On 26 April 2000 the applicant became a shareholder in a limited liability company (“the company”). On 30 May 2005 the applicant withdrew from that company. However, the other shareholder in the company did not return the applicant ’ s share of the company ’ s funds to him, contrary to the law in force.

8 . On 10 December 2007 the applicant lodged proceedings with the domestic courts, seeking an acknowledgment that he had withdrawn from the company. On 20 December 2007 the Bryankivskyy Local Court of the Lugansk Region allowed the applicant ’ s claim and acknowledged that he had withdrawn from the company. On 23 April 2008, by a final ruling, the Lugansk Regional Court of Appeal upheld the decision of the lower court.

9 . Meanwhile, on 25 December 2007 and 22 January 2008 the company had sold two of its commercial buildings to company B., which had sold them to company K. on 10 January 2008 and 25 February 2008 respectively.

10 . On 19 June 2008 the applicant lodged a claim for reimbursement of the value of his share.

11 . On 19 June 2008 the Lugansk Regional Commercial Court (hereinafter “the Commercial Court”) opened the proceedings and ordered the seizure of the company ’ s assets, in order to guarantee the repayment of the applicant ’ s share. After learning that the other shareholder had sold the company ’ s immovable property to third parties, on 9 December 2009 the applicant changed his claim and sought reimbursement of the value of his share, as well as an acknowledgment that the above sale contracts of 25 December 2007, 22 January 2008, 10 January 2008 and 25 February 2008 were invalid.

12 . On 2 February 2010 the Commercial Court allowed the applicant ’ s claim in part. On 27 April 2010 the Lugansk Commercial Court of Appeal amended the above-mentioned decision in part. On 18 November 2010 the Higher Commercial Court quashed the decisions of the lower courts and remitted the case for fresh examination.

13 . As a result of the case being examined afresh, on 29 December 2011, by a final decision, the Higher Commercial Court terminated the proceedings with respect to the applicant ’ s claim for reimbursement of the value of his share in the company, as that issue had been examined in the course of the insolvency proceedings (see the “Insolvency proceedings” section below). The applicant ’ s claim for an acknowledgment that the sale agreements relating to the company were invalid was rejected on account of his lack of standing.

14 . On 6 October 2010, upon the application of a fourth company, company P., the Commercial Court started insolvency proceedings against the company, imposing a moratorium on debt payments.

15 . In December 2010 the applicant lodged his creditor ’ s claim with the Commercial Court.

16 . On 28 February 2011 the Commercial Court adjourned the proceedings until 7 April 2011, as the applicant had failed to provide evidence for his monetary claim.

17 . On 11 April 2011, by a final decision, the Commercial Court recognised the applicant ’ s entitlement, as a creditor, to 4,100,439 Ukrainian hryvnias (UAH – around 356,560 euros (EUR) at the material time), an amount that corresponded to his share in the company.

18 . On 28 April 2011 the Commercial Court allowed an application by the applicant ’ s representative to suspend the proceedings until the outcome of the other related proceedings was known.

19 . On 5 January 2012 the Commercial Court resumed the proceedings.

20 . On 12 March 2012 the Commercial Court allowed an application by the applicant ’ s representative to suspend the proceedings until the outcome of the other related proceedings was known.

21 . On 17 June 2013 the Commercial Court resumed the proceedings.

22 . On 11 November 2013 the Commercial Court adjourned the proceedings until 13 January 2014, as the case-file material was sent to the court of cassation so that the applicant ’ s objections to two procedural decisions of November 2010 and April 2011 could be considered.

23 . On 3 February 2014 the Commercial Court declared the company insolvent, initiated the liquidation procedure, and appointed a liquidator, D.

24 . On 17 April 2014 the Commercial Court considered a report prepared by D. which stated, among other things, that in terms of property, the company only had two vehicles, whose location was unknown. Since further actions relating to the liquidation procedure were necessary, the court adjourned the proceedings until 7 July 2014.

25 . Between July 2014 and April 2015 the Commercial Court did not operate, owing to the armed conflict in eastern Ukraine.

26 . On 2 April 2015 the Higher Commercial Court of Ukraine ordered that the Commercial Court resume its activity in Kharkiv .

27 . On 2 July 2015 the Commercial Court reopened the proceedings of its own motion, upon restoring the case file concerning the insolvency proceedings.

28 . On 17 August 2015 the liquidator wrote to the Commercial Court, asking to be dismissed from his position. The Commercial Court ordered the creditors ’ committee to consider the liquidator ’ s request.

29 . Between 20 October 2015 and 10 September 2019 the Commercial Court noted in several decisions that the creditors ’ committee had not decided the issue of the liquidator wishing to withdraw, and on numerous occasions it ordered the liquidator to convene a meeting of the creditors ’ committee and have a new liquidator designated by the latter.

30 . In this connection, on 17 November 2015 the Commercial Court received a negative reply to an enquiry which it had made as regards selecting the name of a new liquidator via the automatic system, as no appropriate candidate had been found.

31 . On 15 June 2018 the Commercial Court asked Y., a potential new liquidator whose name had been found via the automatic system, to submit written consent confirming her willingness or refusal to act as a liquidator. She did not reply.

32 . On 23 June 2018 L. informed the Commercial Court that he would be unable to act as a liquidator, as he had a heavy workload.

33 . On 20 July 2018 the Commercial Court asked P., a potential liquidator whose name had been found via the automatic system, to submit written consent confirming his willingness or refusal to act as a liquidator. He did not reply.

34 . On 9 August 2018 the Commercial Court asked R., a potential liquidator whose name had been found via the automatic system, to submit written consent confirming his willingness or refusal to act as a liquidator.

35 . On 30 July 2019 the Commercial Court allowed the applicant ’ s wife ’ s application to be admitted to the proceedings in her capacity as a creditor, as she was the applicant ’ s heir. It also asked R., a potential liquidator whose name had been found via the automatic system, to submit written confirmation of his willingness or refusal to act as a liquidator. The Commercial Court also stated that D., the liquidator (see paragraph 28 above), had provided a report dated 10 July 2019, which stated, among other things, that owing to the armed conflict in eastern Ukraine he had changed his place of residence from Lugansk to Odessa, and the liquidation of the company had been suspended. D. had stated that he had asked to be withdrawn from the case on 17 August 2015 owing to objective reasons which impeded the performance of his functions. He had convened a creditors ’ committee meeting in Kyiv on 24 July 2019.

36 . On 10 September 2019 the Commercial Court asked S., a potential liquidator whose name had been found via the automatic system, to submit written consent confirming his willingness or refusal to act as a liquidator.

37 . On 31 October 2019 the Commercial Court adjourned the hearing to 10 December 2019, as D. and the creditors did not attend the hearing. The creditors ’ committee did not decide on D. ’ s application to withdraw from the case, and did not provide a proposal with the name of a new liquidator.

38 . On 16 April 2020 the Commercial Court adjourned the hearing to 17 June 2020, as D. and the creditors did not attend the hearing. The creditors ’ committee did not decide on the D. ’ s application to withdraw from the case, and did not provide a proposal with the name of a new liquidator.

39 . On 8 September 2011 the applicant filed a criminal complaint against the company ’ s officials with the Leninskyy district police department of Lugansk, and on the basis of that complaint a criminal fraud case was opened.

40 . On 22 February 2014 the criminal case was closed for lack of corpus delicti . In 2014, due to the armed conflict in eastern Ukraine, the criminal case-file material was left in Lugansk.

41 . On 23 September 2016 the Svativ District Court quashed the decision of 22 February 2014. The criminal investigation is currently ongoing.

42 . Section 114 of the Law of Ukraine on restoring a debtor ’ s solvency or declaring insolvency of 14 May 1992 ( Закон України “ Про відновлення платоспроможності боржника або визнання його банкрутом ” ) provides, inter alia , that following a liquidator ’ s request, a commercial court may dismiss a liquidator from the execution of his or her duties. A commercial court may appoint a liquidator following a request from a creditors ’ committee, or, in the absence of such a request, may appoint a candidate of its own choice of its own motion. In the absence of written consent from a candidate who has been selected via the automatic system, a commercial court has to appoint a liquidator from the integrated register of arbitration administrators (asset managers, insolvency practitioners, liquidators).

43 . The Code of Ukraine on Insolvency Proceedings of 18 October 2018 entered into force on 21 October 2019 and repealed the Law of Ukraine on restoring a debtor ’ s solvency or declaring insolvency of 14 May 1992. Article 28 § 4 of the Code provides that a commercial court may dismiss an arbitration administrator from executing his or her duties as a liquidator. Article 60 provides that in a decision declaring a debtor insolvent and opening the liquidation procedure, a commercial court has to appoint a liquidator from the integrated register of arbitration administrators.

THE LAW

44 . The applicant died while the case was pending before the Court. On 30 October 2018 his representative informed the Court that the applicant ’ s son, Mr Andriy Borysovych Parinov , wished to pursue the application. On 5 December 2019 the applicant ’ s representative informed the Court that the applicant ’ s wife, Ms Iryna Kostyantynivna Parinova , also wished to pursue the application.

45 . The Government submitted that since complaints concerning the length of proceedings and a lack of effective remedies were non-transferable, and since the applicant ’ s complaint of the violation of his property rights was manifestly ill-founded, the applicant ’ s son and wife were not victims and lacked a legitimate interest in pursuing this case.

46 . The Court reiterates that in a number of cases in which an applicant has died in the course of proceedings it has taken into account statements of the applicant ’ s heirs or close family members expressing the wish to pursue the proceedings before the Court. It has done so most frequently in cases which primarily involved pecuniary and, for this reason, transferable claims. However, the question of whether such claims are transferable to persons seeking to pursue an application is not the exclusive criterion. In fact, human rights cases before the Court generally also have a moral dimension, and persons close to an applicant may have a legitimate interest in seeing to it that justice is done even after the applicant ’ s death (see Horváthová v. Slovakia , no. 74456/01, § 26, 17 May 2005), even where the complaint before the Court concerns the length of proceedings (ibid., §§ 26-27).

47 . Having regard to the particular circumstances of the case, the Court accepts that the applicant ’ s son and wife have a legitimate interest in pursuing the application in the late applicant ’ s stead. It will therefore continue dealing with the case at his request. However, reference will still be made to the applicant throughout the text.

48 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement as provided for in Article 6 § 1 of the Convention, which reads as follows:

Article 6

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

49 . The Government submitted that there were three different sets of court proceedings, which should be considered separately. They stated in particular that the first set of proceedings had finished on 23 April 2008 and the second set of proceedings had finished on 29 December 2011. Since the application had been lodged on 30 June 2017, those two sets of proceedings should not count towards the total length of the proceedings, as this would be incompatible with the six-month time-limit.

50 . The applicant disagreed and stressed that all three sets of proceedings should be considered together as one set of proceedings, as they were interdependent.

51 . The Court agrees with the Government that the subject matter and, consequently, the civil rights to be determined, were different in the three sets of proceedings. Therefore, having regard to the fact that the final judgments in the first and second sets of proceedings dated from 23 April 2008 (see paragraph 8 above) and 29 December 2011 (see paragraph 13 above) and that the present application was submitted on 30 June 2017, more than six months later, the complaints related to these proceedings were submitted out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

52 . As regards the insolvency proceedings, since those proceedings are still ongoing, the six-month time-limit set out in Article 35 § 1 of the Convention has not started running, so it cannot be said that the applicant has failed to comply with that rule.

53 . The Government argued that the applicant had not lodged a complaint regarding the liquidator ’ s inactivity with the Commercial Court.

54 . The applicant disagreed, arguing that there had been no effective remedies which he could use.

55 . The Court observes that, in the instant case, the question of whether the requirement of exhaustion of domestic remedies has been satisfied is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that this objection, raised by t he Government under Article 6 § 1 of the Convention, should be joined to the merits of the complaint under Article 13.

56 . The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

57 . The Government maintained that the insolvency proceedings had been complex and that the delays in the proceedings had been caused by the parties – including the applicant, who had challenged two procedural decisions of the national courts in November 2013 – and the liquidator. They further argued that, in insolvency proceedings, the parties and the liquidator were the main actors, while the State authorities had no power to interfere.

58 . The applicant disagreed. He submitted that the insolvency proceedings had concerned a company with only two shareholders, and that he had used the procedures available to him in order to protect his rights and not delay the proceedings. Moreover, he argued that he could not be blamed for the behaviour of the other parties, and that he had had no effective remedy against the liquidator ’ s inactivity.

59 . The Court reiterates that according to its case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case, and the importance of what was at stake for the applicant in the litigation (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII).

60 . The Court notes that the relevant period to be taken into consideration began in December 2010 (see paragraph 15 above) and is ongoing. Thus, so far the insolvency proceedings have lasted nine years, eleven months and fourteen days at one level of jurisdiction.

61 . The Court further observes that upon the applicant ’ s representative ’ s applications, between 28 April 2011 and 17 June 2013 the Commercial Court stayed the insolvency proceeding two times for the total period of one year, eleven months and fifteen days. Such a delay cannot be attributable to the State, unless the consequent proceedings are unreasonably long (see Finkov v. Russia , no. 27440/03 , § 105, 8 October 2009 ).

62 . As to the Government ’ s arguments that the applicant contributed to the delay in the proceedings in November 2013 by challenging two procedural decisions before the Court of Cassation, the Court takes the view that the applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interest (see Bakiyevets v. Russia , no. 22892/03, § 47, 15 June 2006).

63 . In relation to the period between July 2014 and April 2015, during which the Commercial Court was not operating owing to the armed conflict in eastern Ukraine, the Court reiterates that in the case of Khlebik v Ukraine (no. 2945/16, § 79, 25 July 2017 ) it found that the Ukrainian State authorities had taken all the measures available to them to organise the judicial system in a way that would render t he rights guaranteed by Article 6 effective in the specific situation of ongoing conflict, and that finding was later confirmed in the case of Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others , § 55, 13 February 2018). In the absence of any specific element that would indicate that the domestic authorities did not take the steps reasonably expected of them to ensure the proper functioning of the judicial system, the Court sees no reason to depart from that conclusion in the present case. Therefore, the delay in the insolvency proceedings between July 2014 and April 2015 – cannot be attributed to the State.

64 . This being so, the Court observes that in August 2015 the liquidator asked the Commercial Court to dismiss him from his position. The proceedings have been blocked ever since, because no new liquidator has been appointed. In this regard, the Court is unable to follow the Government ’ s argument that the parties to the domestic proceedings are responsible for the delay of at least four and a half years because they have not suggested the name of a prospective liquidator to the Commercial Court. In this context, the Court reiterates that section 114 of the Law of Ukraine on restoring a debtor ’ s solvency or declaring insolvency provided that a commercial court might dismiss and appoint a liquidator of its own motion, and Article 28 § 4 of the Code on Bankruptcy Proceedings provides that a commercial court may dismiss a liquidator if he applies to withdraw from a case. The commercial court indeed accelerated the procedure for appointing a new liquidator in 2018, but with little success (see paragraphs 29 - 38 above). Having said that, the Court reiterates that it is for the State to organise its legal system in such a way as to enable its courts to comply with the requirement of Article 6 § 1 of the Convention (see Zavodnik v. Slovenia , no. 53723/13 , § 97, 21 May 2015, and De Blasi v. Italy , no. 1595/02, §§ 32-33, 5 October 2006). Therefore, the delay due to the failure to appoint a liquidator is attributable to the respondent State.

65 . The Government did not provide any justification for this delay, apart from arguing that the instant case was of particular complexity , referring to its economic nature. In view of the foregoing considerations, the Court concludes that the time spent on appointing a new liquidator – four and a half years at least – was excessive, which added to the total length of proceedings, and the length of the proceedings failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.

66 . The applicant complained that he had had no effective remedies against the length of the insolvency proceedings. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

67 . The Government argued that the applicant could have lodged a complaint regarding the liquidator ’ s inactivity with the Commercial Court.

68 . The applicant disagreed, arguing that such a complaint would have had no chances of success, as the national law did not provide for any sanctions for a liquidator ’ s inactivity.

69 . The Court notes that this complaint is closely linked to the complaint examined under Article 6 § 1 of the Convention (see paragraph 65 above) and must likewise be declared admissible.

70 . The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

71 . The Court has frequently found violations of Article 13 of the Convention in cases raising issues similar to the one in the present cas e, stating that the current Ukrainian legislation does not provide a remedy for complaints concerning the length of proceedings (see, for instance, Efimenko v. Ukraine , no. 55870/00, §§ 48-50 and § 64, 18 July 2006, and Gutka v. Ukraine , no. 45846/05 , § 34, 8 April 2010 ).

72 . In the present case, the Court is not convinced by the Government ’ s argument that filing a complaint with the Commercial Court regarding the inactivity of a liquidator who had withdrawn from a case would have been an effective remedy to accelerate the proceedings, as the main defect of those proceedings was the absence of any liquidator from August 2015 onwards and the Commercial Court ’ s procrastination with regard to the appointment of a liquidator.

73 . Accordingly, the Court considers that the applicant did not have an effective remedy, and that there has been a violation of Article 13. In view of this conclusion, it also rejects the Government ’ s objection concerning the non-exhaustion of domestic remedies.

74 . Referring to Article 1 of Protocol No. 1, the applicant complained that owing to the excessive length of proceedings, it was now impossible for him to recover his share in the company.

75 . The Court finds that the evidence presented does not allow it to establish a causal link between the delayed proceedings and the fact that the applicant ’ s claim was never satisfied. Accordingly, this complaint is manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

76 . The applicant lastly complained under Article 1 of Protocol No. 1 to the Convention that the criminal investigation against the company ’ s former officials had been lengthy and ineffective (see paragraphs 39 - 41 above).

77 . In the light of all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

78 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

79 . The applicant claimed 1,318,884 euros (EUR) in respect of pecuniary damage, and EUR 5,000 in respect of non-pecuniary damage. The amount claimed in respect of pecuniary damage comprised the amount awarded to him by the Commercial Court on 11 April 2011 (see paragraph 17 above), indexed in line with inflation, plus statutory interest at 3% per annum as provided for in domestic law.

80 . The Government argued that the State could not be held responsible for the debts of a private company, especially when the relevant proceedings were still ongoing. They further argued that the claim in respect of non ‑ pecuniary damage had not been substantiated.

81 . The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards the applicant ’ s son and wife EUR 2,400 in respect of non-pecuniary damage.

82 . The applicant also claimed EUR 3,800 for the costs and expenses incurred before the domestic courts, and EUR 3,800 for those incurred before the Court.

83 . The Government submitted that the applicant ’ s claims were not justified.

84 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 250 for the proceedings before the Court.

85 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant ’ s son and wife jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 250 (two hundred and fifty euros), plus any tax that may be chargeable to the applicant ’ s son and wife, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 10 December 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Stéphanie Mourou -Vikström Deputy Registrar President