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FIFTH
SECTION
CASE OF FEDORCHUK v. UKRAINE
(Application
no. 20746/05)
JUDGMENT
STRASBOURG
15
November 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 Fedorchuk 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 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20746/05) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Ms Natalya Vladislavovna Fedorchuk (“the
applicant”), on 18 May 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
24 October 2005 the
Court decided to communicate the complaints concerning the length of
the civil proceedings and the lack of remedies in that respect 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 1962 and lives in Kherson.
A. Criminal proceedings
- In April 1997 the applicant instituted criminal
proceedings against Mr V.S., accusing him of fraud and forgery.
She contended that in 1995 she had prepared a notarially recorded
power of attorney in his name with an intention to authorize him to
sell her apartment. However, she had not handed the original document
to him and left for Russia, where she had worked until 1997. Having
returned to Kherson, she had learned that Mr V.S. had sold her
apartment to a certain Mr D.D., who had subsequently exchanged
it for Mrs L.Ch.'s house.
- Subsequently,
an expert established that the particular copy of the power of
attorney, which had been used by Mr V.S. for concluding the sale
agreement, contained the applicant's forged signature.
- On
30 April 1997 the criminal proceedings were suspended, as
Mr V.S.'s whereabouts were unknown and he was placed on the
national “wanted” list.
B. Civil proceedings
- In
April 1997 the applicant also instituted civil proceedings against
Mrs L.Ch., Mr D.D., and Mr V.S., claiming restitution
of the apartment.
- On
30 June 1997 the Suvorovsky District Court of Kherson
(Суворовський
районний суд
м. Херсона)
allowed the applicant's claim. This judgment became final.
- On
28 November 1997 the Presidium of the Kherson Regional
Court (“the Regional Court”; Херсонський
обласний суд)
quashed the judgment of 30 June 1997 following a
supervisory protest of the Deputy Regional Prosecutor and
remitted the case for a fresh consideration.
- On
30 August 2000 Mr D.D. and Mrs L.Ch. lodged a
counterclaim, maintaining that Mr V.S. had been duly authorized
to sell the apartment.
- On
5 September 2000 the Suvorovsky Court dismissed the
applicant's claim and allowed the counterclaim. It recalled that the
applicant had not officially revoked the authorization to sell her
apartment, which had remained on the notary register, and so the
forgery of a particular copy of the power of attorney had not made
the sales agreement null and void. This judgment became final.
- On
18 December 2000 the Regional Court quashed this judgment
following a supervisory protest introduced by the Deputy
Regional Prosecutor and remitted the case for a fresh consideration.
- On
15 November 2002 the Suvorovsky Court dismissed the
applicant's claim and allowed the counterclaim, having found that it
could not invalidate the sales agreement solely on the basis of an
expert opinion that a copy of the power of attorney had been forged.
The applicant appealed pursuant a newly introduced appeal procedure.
- On
5 March 2003 the Regional Court dismissed the applicant's
appeal. On 17 March 2003 the applicant appealed in
cassation.
- On
19 November 2004 the Supreme Court rejected the applicant's
request for leave to appeal in cassation.
- In
the course of the proceedings, the first-instance court scheduled
some fifty hearings. Some twenty of them were adjourned on account of
the defendants' absences. Some seven adjournments were attributable
to the applicant's absences or her requests for adjournments. Four
hearings were adjourned on account of both parties' absence.
THE LAW
I. COMPLAINT ABOUT THE UNREASONABLE LENGTH OF THE CIVIL
PROCEEDINGS
- The
applicant complained that the length of the civil 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.
- The
Court notes that the proceedings at issue were instituted in
April 1997. However, the period to be taken into consideration
began only on 11 September 1997, when the recognition by
Ukraine of the right of individual petition took effect.
Nevertheless, in assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time.
- The
period in question ended on 19 November 2004. It thus
lasted seven years and two months for three levels of jurisdiction.
The Court recalls, however, that it is appropriate to take into
account only those periods when the case was actually pending before
the courts, that is the periods when the authorities were under an
obligation to determine the issue within a “reasonable time”
(Golovko v. Ukraine, no. 39161/02, § 49,
1 February 2007). Accordingly,
the two-month period between 11 September and 28 November 1997
and the three-month period between 5 September and
18 December 2000, when there existed a final judgment in
the case (paragraphs 10 and 13 above), should be excluded from the
calculation. Thus, the period to be taken into consideration lasted
six years and nine months.
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
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).
- 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 a number of delays (in particular,
remittals of the case for a fresh consideration after the judgments
therein became final, prolonged period of inactivity in considering
the applicant's cassation appeal and failures of the first-instance
court to ensure the defendants' presence) are attributable to the
Government.
- 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; Smirnova v.
Ukraine, no. 36655/02, 8 November 2005 and
Golovko v. Ukraine, cited above).
- 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that she had no effective remedies for
her complaint concerning the excessive length of the proceedings. She
relied on Article 13 of the Convention.
- The
Government considered that Article 13 was not applicable to the
circumstances of the case as the applicant had not made out an
arguable claim under Article 6 § 1.
- The
Court refers to its findings in paragraphs 22 and 27 above and notes
that this complaint is linked to the applicant's complaint under
Article 6 § 1. The Court finds that it must be
declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). The Government did not indicate any such remedy available
to the applicant.
- The
Court considers that in the present case there has been a violation
of Article 13 of the Convention on account of the lack of a remedy
under domestic law whereby the applicant could have obtained a ruling
upholding her right to have her case heard within a reasonable time,
as set forth in Article 6 § 1 of the Convention (see Efimenko v.
Ukraine, no. 55870/00, § 64, 18 July 2006).
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 § 1 about an allegedly
unfair hearing and the outcome of the civil proceedings; about a lack
of legal certainty in that the judges took opposing views; about
partiality of the courts and the unreasonable length of the criminal
proceedings against Mr V.S. Lastly, the applicant invoked
Article 1 Protocol No. 1 to the facts of the present case.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, insofar 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 declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
IV. 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 47,800 dollars (38,700 euros (EUR)) in respect of
pecuniary damage and EUR 15,000 in respect of non-pecuniary
damage.
- The
Government contested these claims.
- 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 EUR 600 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 22,500 hryvnyas (EUR 3,780) in legal fees
incurred in connection with her domestic and Convention proceedings.
She presented receipts for a total amount of 14,000 hryvnyas
(EUR 2,350).
- The
Government contested the claim.
42. 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, Nilsen
and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII).
43. The Court considers that these
requirements have not been met in the instant case. As regards the
applicant's Convention proceedings, it notes that the case was not
particularly complex and the lawyer did not sign any submissions to
the Court on the applicant's behalf. Regard being had to the
information in its possession and to the above considerations, the
Court awards the applicant EUR 200 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 complaints concerning the excessive
length of the civil proceedings and lack of effective remedies in
this respect admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 800
(eight hundred euros) in respect of non-pecuniary damage, 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 15 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
