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FIFTH
SECTION
CASE OF VYROVYY v. UKRAINE
(Application
no. 28746/03)
JUDGMENT
STRASBOURG
12 July
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vyrovyy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R.
Jaeger,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 19 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28746/03) 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 Illya Ivanovych Vyrovyy (“the
applicant”), on 22 July 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
7 December 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings to the Government. Applying Article 29 § 3 of
the Convention, it decided to rule on the admissibility and merits of
the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1936 and lives in Vinnytsya.
A. Background facts
- In
1992 the applicant requested the State Cooperative Association
“Zakhidelevatoragrospetsbud” (the “Association”;
Державно-кооперативне
об'єднання по
агропромисловому
будівництву
“Західелеваторагроспецбуд”),
his employer at the material time, to grant him and his family
priority in the allocation of housing to employees. Subsequently his
request was allowed on account of the fact that his father had fought
and perished in World War II.
- In January 1997
the Association attributed the applicant apartment no. 43
in a new building being constructed by several investors, including
the Association. However, in September 1997 the Association
transferred this apartment to another investor, as the value of its
contribution into the construction project had been reassessed at a
lower level.
- On
1 March 1998 the Association transferred its assets to the State
Company “Vinelevatorbud” (the “Company”;
Державне підприємство
“Вінелеваторбуд”)
and ceased carrying out any business. However, the liquidation
formalities were not completed.
B. Civil proceedings
- On
9 December 1997 the applicant instituted civil proceedings
in the Staromisky District Court of Vinnytsya (the “District
Court”; Староміський
районний суд
м. Вінниця)
against the Association, asserting his rights to apartment no. 43.
- Between
December and June 1998 the court adjourned five hearings on account
of the Association's absence, and one on account of the court's
relocation to another building.
- On
8 June 1998 the District Court allowed the applicant's
claims and allocated him apartment no. 43, having found that the
re-distribution of the apartment between the investors was flawed and
that the applicant's family were entitled to priority allocation of
housing. The Association lodged an appeal in cassation.
- On
14 July 1998 the Vinnytsya Regional Court (the “Regional
Court”; Вінницький
обласний суд)
quashed this judgment, having found that the analysis of facts and
law by the District Court was insufficient and remitted the case to
the District Court for a fresh consideration.
- On
1 October 1998 the District Court dismissed the applicant's
claims, having found that the re-distribution process was not in
breach of applicable law. The applicant lodged an appeal in
cassation.
- On
1 December 1998 the Regional Court quashed this judgment
and remitted the case to the District Court for a fresh
consideration. In particular, it found that the District Court's
analysis was insufficient.
- Between
January and April 1999 the District Court held two hearings, one of
them being adjourned on account of the parties' failure to appear.
- On
22 April 1999 the District Court found that, since the applicant was
entitled to priority housing, the Association should have
redistributed another apartment to the investors. The court further
obliged the Association to provide the applicant with an apartment of
equal value at its own expense. This judgment was not appealed
against and became final in May 1999.
- On
an unspecified date the Staromisky District Bailiffs' Service
initiated the enforcement proceedings in respect of the judgment of
22 April 1999 and requested the District Court to provide
instructions as to the execution of the judgment, given that the
Association had transferred all its assets to the Company.
- On
30 September 1999 the District Court found the Company to be the
Association's successor in respect of the judgment of 22 April 1999
and ordered it to pay the applicant 31,080 Ukrainian hryvnyas (UAH)
instead of providing an apartment. This decision was not appealed
against and became final in October 1999.
- On
13 January 2000 the Presidium of the Regional Court quashed the
ruling of 30 September 1999 following a “protest”
instituted by the court's President and ordered the District Court to
re-consider the request of the Bailiffs' Service. In particular, the
Presidium noted that the District Court had not requested any
liquidation documents and had insufficiently explored whether the
Association had been succeeded by the Company. Furthermore, in breach
of applicable law, the court had neither heard nor summoned the
parties concerned.
- On
14 April 2000 the District Court found that the Association had not
been formally liquidated and ordered it to purchase an apartment for
the applicant. This decision became final in April 2000.
- On
30 May 2000 the applicant petitioned the District Court to re-open
the proceedings in connection with a “newly disclosed
circumstance” (перегляд
за нововиявленими
обставинами),
namely that the Association had, in fact, ceased to exist.
- On
7 July 2000 the District Court allowed the applicant's petition. It
annulled the judgment of 22 April 1999 and remitted the case for a
fresh consideration, having summoned the Company as the defendant in
the Association's stead.
- On
29 September 2000 the District Court allowed the applicant's claims
and ordered the Company to provide him with an apartment. The Company
appealed in cassation.
- On
21 November 2000 the Regional Court, by a final decision, upheld the
judgment of 29 September 2000.
- On
29 March 2001 the Presidium of the Regional Court quashed the
judgment of 29 September 2000, following a “protest”
lodged by the Deputy President of the Supreme Court, and remitted the
case for a fresh consideration.
- Between
May 2001 and March 2002 the District Court adjourned seven
hearings, one of the adjournments being attributable to the applicant
(amendment of claims).
- On
15 March 2002 the District Court partly allowed the applicant's
claims. It obliged the Association and the Company jointly to provide
an apartment to the applicant. The Company appealed.
- On
4 June 2002 the Regional Court quashed this judgment and remitted the
case for a fresh consideration, having found that the District Court
had still failed to explore a number of issues, including that of
succession between the Association and the Company.
- On
19 December 2002 the District Court dismissed the applicant's claims,
having found that the defendants had no apartments for distribution
and the applicable law did not provide for monetary compensation in
this event. Moreover, the applicant no longer qualified for priority
treatment either by the Association or the Company, since he no
longer worked for them and his living conditions were satisfactory.
The applicant appealed.
- On
1 April 2003 the Regional Court upheld this judgment. The applicant
appealed in cassation.
- On
23 May 2003 the District Court returned the applicant's appeal in
cassation as “not lodged” on account of his failure to
abide by the court's order to pay a court fee. The applicant
appealed, seeking to be relieved of the obligation to pay the fee.
- On
7 July 2003 the Regional Court dismissed the applicant's appeal
against the decision of 23 May 2003. The applicant did not
appeal in cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
period to be taken into consideration began on 9 December 1997
and ended on 7 July 2003. It thus lasted five years and
seven months for two levels of jurisdiction.
- The
Court notes that on 22 April 1999 the applicant obtained a
final judgment in his favour, which was subsequently quashed on
7 July 2000. However, the period between the taking and the
quashing of this judgment should not be excluded from the calculation
as it remained unenforced and the enforcement proceedings were
pending during the aforementioned period (see Androsov v.
Russia, no. 63973/00, § 53, 6 October 2005
and mutatis mutandis, Pobegaylo v. Ukraine,
no. 18368/03, §§ 18-19, 29 March 2007).
- 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 the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- Turning
to the facts of the present case, the Court finds that the matter
before the domestic courts was of some complexity (particularly on
account of the defendant's incomplete liquidation) and that the
applicant contributed to the length of the proceedings by lodging
appeals, requests, and amending his claims. The Court further finds
no ground why the domestic courts should have dealt with the case
with particular urgency vis-à-vis other cases pending
before them.
- At the same time, the Court finds that the complexity
of the case and the applicant's conduct alone cannot explain the
overall length of the proceedings. It considers that the State
authorities were responsible for a number of delays, including
numerous remittals of the case for a fresh consideration, adjournment
of hearings in connection with court matters and on account of the
defendant's, a State entity's, failures to appear, as well as for the
failure to enforce a final judgment given against a State-owned
debtor.
- The
Court has already found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see e.g., Frydlender, cited above; Svetlana
Naumenko v. Ukraine, no. 41984/98,
9 November 2004 and Karnaushenko v. Ukraine,
no. 23853/02, 30 November 2006).
- 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 in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
- Additionally, the applicant complained that the
proceedings were unfair and resulted in an unfair decision.
- The Court recalls that the applicant failed to pay a
court fee for examination of his appeal in cassation against the
judgment of 19 December 2002 and did not challenge the
order to pay such court fee before the Supreme Court. Thus, he has
not exhausted the available domestic remedies in respect of his
claims (see, Vorobyeva v. Ukraine (dec.), no. 27517/02,
17 December 2002). Therefore, this part of the application should be
rejected in accordance with Article 35 §§ 1,
3 and 4 of the Convention.
III APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 300,000 euros (EUR) in respect of non-pecuniary
damage.
-
The Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Nevertheless, the particular amount claimed is excessive.
Making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court awards the applicant EUR 1,600
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 3,000 (EUR 486) for legal fees
and UAH 134.95 (EUR 22) for postal services. He submitted
copies of receipts for postal services.
- The
Government noted that the applicant was not represented by a lawyer
before the Court and that he did not submit any justification for his
claims concerning legal fees.
- The
Court reiterates that, in order for costs and expenses to be included
in an award under Article 41, it must be established that they
were actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see, among many other
authorities, Romanchenko v. Ukraine, no. 5596/03,
§ 37-38, 22 November 2005).
- The
Court considers that as regards the applicant's claim for legal fees
these requirements have not been met. It notes that the applicant
first informed the Court of his representation in his final written
submissions and neither named his lawyer nor presented any proof of
payment. Regard being had to the circumstances of the case and the
submissions of the parties, the Court awards the applicant EUR 22
for postal expenses and dismisses the remainder of the claims under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,622
(one thousand six hundred twenty two euros) in respect of
non-pecuniary damage and costs and expenses, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement, plus any tax that may be chargeable;
(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 points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 July 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
