CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 novembre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sDB6B63EE { width:176.94pt; display:inline-block } .s6B6795E2 { width:0.29pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 46673/06 by Stanislav Semenovich KRAVCHENKO against Ukraine The European Court of Human Rights (Fifth Section), sitting on 9   November 2010 as a Chamber composed of:   Peer Lorenzen, President,   Renate Jaeger,   Rait Maruste,   Isabelle Berro-Lefèvre,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva,   Ganna Yudkivska, judges, and Claudia Westerdiek, Registrar, Having regard to the above application lodged on 7 November 2006, Having deliberated, decides as follows: THE FACTS The applicant, Mr Stanislav Semenovich Kravchenko, is a Ukrainian national who was born in 1939 and lives in Dnipropetrovsk. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was a shareholder in the companies O. and L. The companies O. and L. were liquidated by decisions of the Zhovtnevyy District Council of Dnipropetrovsk and the Dnipropetrovsk Municipal Council respectively. The applicant instituted several sets of proceedings before the domestic courts seeking the annulment of the liquidation and recovery of his shares. 1.     First set of proceedings On 18 March 2003 the applicant instituted proceedings in the Zhovtnevyy District Court of Dnipropetrovsk (“the Zhovtnevyy Court”) against the private companies O. and N. and the Dnipropetrovsk Municipal Council for recovery of his shares. On 28 April 2005 the Zhovtnevyy Court issued a ruling suspending the proceedings as there were criminal proceedings pending against the officials of company O. On 15 July 2005 the Dnipropetrovsk Regional Court of Appeal quashed the ruling of 28 April 2005 and remitted the case to the Zhovtnevyy Court. Company O. appealed in cassation. On 24 April 2007 the Higher Commercial Court dismissed the appeal. On 16 May 2007 the Zhovtnevyy Court decided to continue the examination of the case. Between May 2007 and April 2008 the courts of three levels of jurisdiction examined the question of whether the case fell to be considered within the framework of civil or commercial proceedings. By a decision of 2 April 2008, the Supreme Court ruled that it fell to be dealt with by the civil courts. The case is pending before the Zhovtnevyy Court. 2.     Second set of proceedings On 3 October 2003, following a complaint by the applicant, criminal proceedings were instituted against the officials of company O. on charges of abuse of office. On 4 December 2003 the applicant was granted victim status in the criminal proceedings. On 8 December 2003 the decision of 4 December 2003 was annulled as unsubstantiated. On 13 September 2004 the prosecutors terminated the criminal proceedings in view of the absence of corpus delicti in the actions of the company’s officials. On 10 November 2004 the Zhovtnevyy Court quashed the decision of 13 September 2004 and remitted the case for additional investigations. On 5 August 2005 the prosecutors issued a decision terminating the criminal proceeding in view of the absence of corpus delicti in the actions of the company’s officials. The applicant lodged with the Zhovtnevyy Court an administrative complaint challenging the actions of the prosecutors in the course of the criminal proceedings. On 29 August 2005 the court refused to consider that complaint on the ground that the matter fell outside the jurisdiction of the administrative courts. On 11 January and 25 October 2006, respectively, the Dnipropetrovsk Regional Court of Appeal and the Higher Administrative Court upheld the ruling of 29 August 2005. 3.     Third set of proceedings In January 2005 the applicant instituted civil proceedings in the Zhovtnevyy Court against the Zhovtnevyy Council and several private persons, seeking the annulment of the liquidation of company L. and recovery of his shares in that company. On 2 June 2006 the court left the applicant’s claims without examination as the same matter fell to be examined within the scope of the proceedings against the Head of the Zhovtnevyy Council (see below). On 7 June 2006 the applicant lodged with the Court of Appeal a statement of intent to appeal against the ruling of 2 June 2006. On 16 June 2006 he lodged his appeal with the same court. On 25 July 2006 the Court of Appeal left the applicant’s appeal against the ruling of 2 June 2006 without examination, finding that the statement of intent to appeal against the ruling had been lodged outside the five-day term envisaged by Article   294 § 2 of the Code of Civil Procedure of 2004. On 9 October 2006 the Supreme Court found no grounds to review the case in cassation and rejected the applicant’s appeal in cassation. In January 2009 the applicant sought the review of the ruling of 2 June 2006 in view of newly discovered circumstances, in particular because the administrative proceedings on the matter had been terminated (see below). The courts of three levels of jurisdiction rejected his request, finding that the impugned ruling did not prevent the applicant from lodging a new civil claim. 4.     Fourth set of proceedings In November 2005 the applicant instituted administrative proceedings in the Zhovtnevyy Court against the Head of the Zhovtnevyy District Council of Dnipropetrovsk, seeking the annulment of the liquidation of the company L., in which he had shares. On 17 April 2006 the court rejected the applicant’s claim as unsubstantiated. On 20   September 2006 the Court of Appeal upheld the judgment of 17 April 2006. On 28 October 2008 the Higher Administrative Court found that the dispute fell outside the sphere of administrative proceedings, quashed the decisions of the lower courts and terminated the proceedings. 5.     Fifth set of proceedings On 28 August 2008 the Dnipropetrovsk Regional Commercial Court ordered the liquidation of the company O. On 9 January 2009 the Dnipropetrovsk Commercial Court of Appeal left the applicant’s appeal against the decision of 28 August 2008 without examination as it had been lodged out of time. On 15 April 2009 the Higher Commercial Court found that the applicant was not a creditor of the liquidated company, and that therefore had not shown that his rights had been affected by the liquidation proceedings, and terminated the court proceedings. The applicant appealed in cassation to the Supreme Court, before which the case is still pending. B.     Relevant domestic law 1.     Code of Civil Procedure of 2004 (in force as of 1   September   2005) Article 15. Jurisdiction of the courts as regards civil cases “1.     The courts shall consider, in the framework of civil court procedure, cases ... concerning legal relations in the civil, housing, land, family and labour spheres, as well as other legal relations, provided they do not fall to be considered under the rules of a different type of court procedure...” Article 67. Types of procedural terms “1.     The terms during which procedural acts are performed shall be set by the law, and if they have not been set by the law [the terms shall be] set by the court.” Article 69. Start of the running of procedural terms “1.     A procedural term shall start running on the day after the calendar date of the event [to which the term is linked] ...” Article 70. Expiry of procedural terms “... 2.     The term [expressed] in months shall expire on the same date of the last month of the term ... 5.     The last day of the term shall run until [midnight] ... 6.     The term shall not be considered to be missed if the claim, complaint, other documents or materials, or money have been submitted to the post office or transferred by other means of communication before its expiry.” Article 294. Terms for lodging an appeal “... 2.     [The] statement of intent to lodge an appeal against a ruling of the first-instance court shall be submitted within five days of the day of the pronouncement of the ruling. An appeal shall be submitted within ten days of the day of submission of the statement of intent. 3.     A statement of intent or an appeal submitted after the expiry of the time-limit shall be left without examination unless the court of appeal finds valid reasons for their extension upon a request by the appellant. [The court of appeal] shall adopt a decision [on the extension of the time-limit].” 2.     Civil Code of 2003 (in force as of 1 January 2004) Article 256. Period of limitation “1.     A period of limitation is the period within which a person can lodge a claim with a court for protection of his or her civil right or interest.” Article 257. General period of limitation “1.     The general period of limitation shall constitute three years.” Article 261. Beginning of the period of limitation “1.     The period of limitation starts running from the day when a person learnt or ought to have learnt about the breach of his or her right or about the person responsible for the breach of that right. ...” Article 265. Running of the period of limitation if a claim is left without examination “1.     The period of limitation does not stop running if a claim is left without examination. ...” COMPLAINTS The applicant complains about the length of the first set of proceedings. The applicant also complains under Articles 6 § 1 and 13 about the courts’ failure to examine his case on the merits in the third and fourth sets of proceedings and of the appeal court’s refusal to examine his appeal against the ruling of 2 June 2006 in the third set of proceedings. The applicant further complains about the outcome of the second and fifth sets of proceedings and claims that they were unfair. He finally complains of a violation of Article 1 of Protocol No. 1 in that the State authorities allegedly failed to protect his property rights. THE LAW A.     Length of proceedings and access to a court The applicant complains of excessive length of the first set of proceedings. He also alleges a violation of the right of access to a court on account of the courts’ failure to examine his case on the merits in the third and fourth sets of proceedings and of the appeal court’s refusal to examine his appeal against the ruling of 2   June 2006 in the third set of proceedings. He relies on Article 6 § 1 and Article 13 of the Convention in this respect. The Court finds that the complaints fall 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 fair ... hearing within a reasonable time... by [a] ... tribunal ...” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government. B.     Remainder of the application The applicant also complains about the outcome and unfairness of the second and fifth sets of proceedings. He also alleges a violation of Article 1 of Protocol No. 1 in that the State authorities allegedly failed to protect his property rights. The Court, having examined the remainder of the applicant’s complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court by a majority Decides to adjourn the examination of the applicant’s complaints about the length of the proceedings and of lack of access to a court; Declares the remainder of the application inadmissible. Claudia Westerdiek   Peer Lorenzen     Registrar   President