FIFTH SECTION

CASE OF FPK G ROSS , OOO v. UKRAINE

( Application no. 18608/05 )

JUDGMENT

STRASBOURG

16 February 2012

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

In the case of F PK GROSS , O OO v. Ukraine ,

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

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

Having deliberated in private on 24 January 2012 ,

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

PROCEDURE

1 . The case originated in an application (no. 18608/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the FPK GROSS , OOO (“the applicant company ”), on 12 April 2005 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska , of the Ministry of Justice .

3 . On 25 August 2010 the application was communicated to the Government .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant company , FPK GROSS , OOO ( limited liability company ) , is a Ukrainian legal entity registered in Kharkiv .

A. First set of proceedings

5 . On 14 April 2000 the applicant company lodged a claim with the Kyivskyy District Court of Kharkiv against Mr Ch. (a private individual) , challenging a title to several cars . In the course of the proceedings Mr Ch. and Mr K. (another private individual) lodged , respectively, a counter-claim and a claim against the applicant company and three third parties joined the proceedings.

6 . On 30 October 2000 the case was transferred to the Moskovskyy District Court of Kharkiv , which on 20 November 2003 delivered a judgment. On 8 June 2004 the Kharkiv Regional Court of Appeal quashed it and remitted the case for fresh examination to the Frunzenskyy District Court of Kharkiv .

7 . On 3 August 2007 the latter court delivered a judgment. On 12 December 2007 the Kharkiv Commercial Court of Appeal upheld it. On 1 5 April 2008 the Higher Commercial Court quashed the above decisions and remitted the case for fresh examination to the Kharkiv Commercial Court . On 10 July 2008 the Supreme Court upheld the latter ruling .

8 . On 13 October 2008 the Kharkiv Comme rcial Court ruled against the applicant company .

9 . According to the Government (no copies of the court decisions were provided by the parties ), o n 18 December 2009 the Kharkiv Commercial Court of Appeal upheld t h e above judgment . On 6 April and 26 July 2010 , respectively, the Higher Commercial Court and the Supreme Court returned unexamined the applicant company ’ s appeal s in cassation against the above decisions for unspecified reasons .

10 . According to the Government, in the course of the proceedings eight hearings were adjourned due to the applicant company ’ s representatives ’ or all parties ’ failure to appear and two hearings due to the applicant company ’ s specification of the claim . On one occasion the applicant company requested the extension of the procedural time-limits for lodging its appeal and the courts allowed its request. Th e above delays on the applicant company ’ s part protracted the proceedings by eight months approximately. Thirty three hearings were adjourned due to other parties ’ or expert ’ s failure to appear, upon the other parties ’ requests, due to the absence of the judge s , because the courts needed to collect additional evidence or for unspecified reasons. Three expert examinations were ordered and laste d for one year and five months.

B. Second set of proceedings

11 . On 30 December 2003 the applicant company lodged a claim against the S. company , seeking the recovery of pecuniary amounts.

12 . Following two remittals of the case by the Higher Commercial Court and the Supreme Court for fresh examination, o n 13 October 2010 the Donetsk Commercial Court rejected the claim as unsubstantiated.

13 . On 17 November 2010 and 20 April 2011, respectively, the Donetsk Commercial Court of Appeal and the Higher Commercial Court upheld the above judgment .

14 . According to the Government, in the course of the proceedings nine hearings were adjourned due to the applicant company ’ s representative ’ s failure to appear or upon both parties ’ requests, which protracted the proceedings by six months approximately. Seven hearings were adjourned because the courts needed to collect additional evidence or for unspecified reasons. Two expert examinations were ordered and lasted for two years and seven months.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

15 . The applicant company complained under Articles 6 § 1 and 13 of the Convention about the length of proceedings in its cases . The complaint falls to be examined solely under Article 6 § 1 of the Convention, which reads , in so far as relevant, as follows:

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

16 . The Government contested that argument stating that the cases had been complex and that the applicant company had contributed to the ir overall length .

17 . The period s to be taken into consideration are as follows. The first set of proceedings commenced on 14 April 2000 and ended on 26 July 2010 with the Supreme Court ’ s final ruling (and not on 18 December 20 09 as suggested by the Government), having lasted for about ten years and three months before four levels of jurisdiction. The second set of proceedings commenced on 30 December 2003 and ended on 20 April 2011, having lasted for seven years and four months before four levels of jurisdiction.

A. Admissibility

18 . As far as the second set of proceedings is concerned, t he Court notes that i t lasted for seven years and four months before four levels of jurisdiction. It considers that t his duration, to which the applicant company contributed (see paragraph 14 above), did not in itself exceed what may still be considered “reasonable”. It follows that the complaint about the length of this set of proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

19 . As far as the first set of proceedings is concerned, t he Court considers that th e complaint about its length is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

20 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to i t s complexit y , the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

21 . Turning to the circumstances of the case, the Court considers that neither its complexity nor the conduct of the applicant company, wh ich contributed somewhat to its length (see paragraph 10 above), can explain its overall duration. However, as regards the conduct of the authorities, the Court notes t wo remittals of the case for fresh examination (see paragraphs 6 and 7 above) , thirty three adjournments of the hearings (see paragraph 10 above) and the lengthy periods of examination of the case by the Moskovskyy and Frunzenskyy courts (see paragrap hs 6 and 7 above). In view of the above, the Court concludes that the main responsibility for the length of th e first set of proceedings rested with the State.

22 . The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender , cited above).

23 . Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case . Having regard to its case -law on the subject, the Court considers that the length of the first set of proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention .

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N o . 1

24 . The applicant company also complained under Arti cle 1 of Protocol No. 1 stating that, by failing to examine its cases within the reasonable time, the State violated its right to peaceful enjoyment of p ossessions . The above provision reads, in so far as relevant, as follows:

“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.”

25 . As to the complaint related to the second set of proceedings, having regard to the Court ’ s findings in respect of the length of th at s et (see paragraph 18 ab o ve) , this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

26 . A s to the complaint related to the first set of the proceedings, the Court notes that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. However, having regard to its finding s under Article 6 § 1 (see paragraph 23 above), the Court considers that th is complaint does not require a separate examination (see Zanghì v. Italy , 19 February 1991, § 23, Series A no. 194 ‑ C; and Efimenko v. Ukraine , no. 55870/00, § 68, 18 July 2006).

I II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

27 . The applicant company also complained under Articles 6 § 1 and 13 of the Convention about the unfairness and unfavourable outcome of the proceedings a nd alleged that the domestic courts had been biased .

28 . Having carefully examined the applicant company ’ s submissions 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 those articles of the Convention.

29 . It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

I V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

30 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

31 . The applicant company claimed 183,270 and 15,000 euros (EUR) , respectively, for pecuniary and non- p ecuniary damage .

32 . The Government co ntested t hese claims.

33 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant company EUR 800 in respect of non-pecuniary damage.

B. Costs and expenses

34 . The applicant company claimed EUR 1,184 for costs (court fees, correspondence, etc.) incurred before the domestic courts and the Court, having provided no supporting documents in respect of the proceedings before the Court. It also claimed EUR 37,563 for legal fees paid to Mr S. for his services rendered in the proceedings before the Court , having provided a contract with him and an ac t o f performed work .

35 . The Government co ntested t hese claims.

36 . Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs before the domestic courts . It also rejects , as unsupported by documents , the claim for costs before the Court. Lastly, as far as the claim for legal fees is concerned, t he Court notes that, despite the aforementioned supporting documents, the applicant company was not formally represented by Mr S . in the proceedings before i t (and was not required to be as its case is not particularly complex) , all submissions of the applicant ’ s company having been received from i t s director. In view of the above, the Court rejects th is claim as well .

C. Default interest

37 . 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

1 . Declares the complaint s under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in respect of the length of the first set of proceedings admissible and the remain ing complaints inadmissible;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the first set of proceedings ;

3. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 in respect of the first set of proceedings ;

4 . Holds

(a) that the respondent State is to pay the applicant company , within three months , EUR 800 (eight hundred euros ) , plus any tax that may be chargeable, in respect of non-pecuniary damage , to be converted into Ukrainian hryvnia at the rate applicable at the date of settlement ;

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

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

Done in English, and notified in writing on 16 February 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Mark Villiger              Deputy Registrar President