CASE OF KRAVCHENKO v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1939 and lives in Dnipro. 6. He was formerly a shareholder in two private companies, O. and L., which were liquidated on the basis of decisions by other shareholders. Accordingly, the local authorities struck the companies out of the list of legal entities. The applicant instituted several sets of court proceedings in that regard. 7. On 21 April 2003 the applicant instituted proceedings in the Zhovtnevyy District Court of Dnipro (“the District Court”) against the local council and three private persons, challenging the company’s liquidation, claiming back his shares and seeking compensation. The applicant made changes to his claims on a number of occasions. 8. In the course of the proceedings, about twenty of the approximately fifty hearings were adjourned at the request of one or more of the parties, or owing to their failure to appear. Between July 2005 and February 2007 no hearings were held pending the outcome of appeals in cassation against a procedural decision by one or other of the defendant parties. Between May 2007 and July 2008 courts at three levels of jurisdiction examined the question of whether the case should be considered within the framework of civil or commercial proceedings. Eventually, it was decided that the case should be examined under the rules of civil procedure and examination on the merits resumed in August 2008. 9. Overall, the proceedings lasted for over seven years and eight months, the final decision being taken by the Supreme Court on 29 December 2010. That court upheld decisions of the District Court of 30 June 2010 and of the Dnipro Regional Court of Appeal (“the Court of Appeal”) of 16 September 2010 rejecting the applicant’s claims as unsubstantiated. The courts found that there had been no violation of the applicant’s rights as a shareholder of O. 10. In January 2005 the applicant brought a civil claim with the District Court against the local council and a number of private persons, challenging the liquidation of company L. and the authorities’ decisions in that regard. He also sought the restoration of the company as a legal entity, recovery of his shareholding and an order to declare the minutes of the shareholders’ general assembly invalid. 11. On 2 June 2006, the court decided, in the applicant’s presence, to leave his claim without examination, finding that it concerned essentially the same issue as one which it had examined in proceedings concerning the applicant’s administrative claim (see paragraph 15 and 16 below). 12. On 7 June 2006 the applicant lodged a statement of intent with the Court of Appeal to appeal against the decision of 2 June 2006. On 16 June 2006 he lodged an appeal, stating, inter alia, that that decision had been incorrect, as his administrative claim had concerned only a part of the issues raised in the civil claim. 13. On 25 July 2006 the Court of Appeal left the applicant’s appeal without examination, finding that the statement of intent to appeal had been lodged outside the five-day time-limit envisaged by Article 294 § 2 of the Code of Civil Procedure of 2004 (see paragraph 20 below). According to the appeal decision, the time-limit in question had started to run from the date of the pronouncement of the contested decision. 14. On 9 October 2006 the Supreme Court dismissed the applicant’s appeal in cassation, finding no fault on the part of the lower courts. 15. In November 2005 the applicant brought an administrative claim in the District Court against the head of the local council, seeking the annulment of the decision striking L. out of the list of legal entities. 16. On 17 April 2006 the court, having examined the case pursuant to the Code of Administrative Justice of 2005, rejected the applicant’s claim as unsubstantiated, finding that the contested decision had been lawful. The court further noted that the applicant had made allegations of the unlawfulness of the shareholders’ decision to liquidate the company, which could not be examined in the framework of administrative proceedings. It also noted that the applicant’s claim had been brought out of time, though it did not consider it necessary to reject it on that ground. 17. On 20 September 2006 the Court of Appeal upheld the decision of 17 April 2006. 18. On 28 October 2008 the Higher Administrative Court quashed the decisions of the lower courts and terminated the proceedings. It found that the claim should not have been examined within the framework of administrative proceedings, as it essentially concerned a property dispute. The Higher Administrative Court noted that the applicant’s claim could be heard under the Code of Civil Procedure of 2004.