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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36949/02
by Lidiya Ivanivna PAVLOVSKA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 October 2006 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 23 September 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Lidiya Ivanivna Pavlovska, is a Ukrainian national who was born in 1951 and lives in the city of Lviv, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 19 April 1999 the Shevchenkivsky District Administration of the Lviv City Council appointed the applicant as tutor of her disabled sister Mrs P.
On 6 October 1999 the applicant lodged a claim with the Shevchenkivsky District Court of Lviv, seeking rescission of a purchase contract of an apartment, concluded by Mrs P. As the applicant was acting as tutor of Mrs P., she was a party in these proceedings.
On 1 November 1999 the judge of the court ordered the forensic psychiatric examination of Mrs P.
On 21 April 2000 the expert report was submitted. According to this report, when concluding the above contract Mrs P. lacked legal capacity to act.
On 17 October 2000 the court ordered an additional forensic psychiatric examination.
On 18 December 2000 the second expert report confirmed the conclusions of the first examination.
On 5 April 2001 the court ordered a repeated forensic psychiatric examination.
On 9 July 2001 the third expert report reached the same conclusions as the first and second.
On 4 January 2002 the District Court allowed the applicant’s claim, invalidated the contract and awarded the defendant UAH 17,478[1].
On 25 March 2002 the Lviv Regional Court of Appeal (hereinafter – the Court of Appeal) upheld the judgment of the first instance court.
On 12 November 2003 the Supreme Court quashed the judgment of 4 January 2002 and the decision of 25 March 2002 and remitted the case for a fresh consideration to the first instance court. The Supreme Court established that the lower courts had applied wrong legal provisions.
On 26 May 2004 the Lychakivsky District Court of Lviv allowed the applicant’s claim, invalidated the contract and awarded the defendant UAH 4,000[2].
On 4 October 2004 the Court of Appeal quashed this decision for misapplication of procedural law and remitted the case for a fresh consideration by another composition of judges of the same court.
On 26 September 2005 the Lychakivsky District Court of Lviv allowed the applicant’s claim, invalidated the contract and awarded the defendant UAH 4,000.
On 6 October 2005 the defendant lodged an appeal against this judgment.
On 12 January 2006 the case was referred to the Court of Appeal.
On 3 April 2006 the Court of Appeal quashed this judgment for misapplication of procedural law and failure to follow instructions of the Supreme Court given in its decision of 12 November 2003. The Court of Appeal remitted the case for a fresh consideration by another composition of judges of the same court.
On 15 May 2006 the applicant challenged this decision before the Supreme Court.
On 8 August 2006 the Supreme Court rejected the applicant’s appeal in cassation against the decision of 3 April 2006.
The proceedings are still pending.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the unreasonable length and unfairness of the proceedings. She further complained under Article 1 of Protocol No. 1 to the Convention about the outcome of the proceedings.
THE LAW
A. Length of the proceedings in the applicant’s case
1. The applicant complained about a violation of her right to a hearing within a reasonable time in the determination of her civil claim. She invoked Article 6 § 1 of the Convention which provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair hearing within a reasonable time ...”
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. Other complaints
The applicant complained that Article 6 § 1 of the Convention had been violated as she had been denied a fair trial. She further invoked Article 1 of Protocol No. 1 to the Convention, complaining about an infringement of her property rights.
The Court notes that the proceedings in the applicant’s case are still pending. This part of the application must therefore be rejected as premature under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint under Article 6 § 1 of the Convention about the length of the proceedings concerning the applicant’s civil claim;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President
[1]. EUR 3,629.37
[2] EUR 639.46