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FIFTH
SECTION
CASE OF GAVRILYAK v. UKRAINE
(Application
no. 31406/03)
JUDGMENT
STRASBOURG
3
April 2008
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 Gavrilyak v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31406/03) 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, Mrs Olga Stepanovna Gavrilyak (“the
applicant”), on 15 September 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
21 June 2007 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 1917 and lives in the city of Odessa.
1. Civil proceedings in respect of the applicant’s
claim relating to the land dispute
- In
January 1998 the applicant and a Mr L. lodged a claim with the
Zhovtnevy Court against a Mr G. in respect of a shed which he had
built in their common yard.
- On
28 September 1998 the applicant extended the claim to include the
Odessa City Council.
- On
2 November 1998 the Zhovtnevy Court joined the proceedings with a set
of proceedings brought by Mr G. against the City Council.
- Between
24 December 1998 and 17 December 1999 five out of thirteen hearings
were adjourned due to the authorities’ representatives’
failure to appear before the court, and five due to the absence of
both the applicant’s advocate and the authorities’
representatives. The applicant’s representative Mrs S. was
present at all hearings.
- On
30 December 1999 the Zhovtnevy Court allowed Mr G.’s claim and
found against the applicant.
- On
15 February 2000 the Odessa Regional Court, following the applicant’s
cassation appeal, quashed this decision and remitted the case for a
fresh consideration. The hearings resumed on 5 October 2000.
- Between
5 October 2000 and 21 May 2002 seventeen out of thirty one hearings
were adjourned due to the authorities’ representatives’
failure to appear before the court.
- On
27 May 2002 the Zhovtnevy Court again allowed Mr G.’s claim in
part and found against the applicant.
- On
26 June 2002 the applicant lodged an appeal.
- On
26 November 2002 the hearings were resumed before the Odessa Regional
Court of Appeal (hereinafter “the Court of Appeal”). Two
out of three hearings were adjourned due to the authorities’
representatives’ failure to appear before the court.
- On
30 May 2003 the Court of Appeal upheld the judgment of 27 May
2002.
- On
17 June 2003 the applicant lodged a cassation appeal against the
decision of 27 May 2002.
- On
29 August 2003 the applicant requested the first instance court not
to send her cassation appeal to the Supreme Court as the case-file
was not duly prepared. Her request was rejected, and various appeals
against the rejection were rejected.
- On
22 February 2006 the Supreme Court rejected the applicant’s
cassation appeal against the judgment of 27 May 2002, thereby
terminating the proceedings. This decision was sent to the applicant
on 26 April 2006.
2. Administrative proceedings instituted by the
applicant
- In
November 2003 the applicant instituted administrative proceedings
against the Public Prosecutor of Odessa seeking to find unlawful the
refusal to lodge a protest against the decision of the Odessa
City Council of 29 March 1994 on the use of the plot of land adjacent
to her house.
- On
25 February 2005 the Prymorsky District Court of Odessa rejected the
applicant’s complaint.
- On
31 May 2005 and 21 June 2006 the Court of Appeal and the Higher
Administrative Court, respectively, upheld this decision.
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.
- The
period to be taken into consideration began in January 1998 and ended
on 22 February 2006. It thus lasted eight years and one month for
three levels of jurisdiction.
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
Government submitted that the domestic courts considered the case
within a reasonable time and without substantial delays attributable
to the State. They underlined that the protracted length of the
proceedings was due to the complexity of the case and the applicant’s
repeated appeals. The Government further maintained that the hearings
were adjourned on numerous occasions due to the parties’
failure to appear before the court.
- The
applicant disagreed.
- 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 notes that the domestic courts based their judgments on
examination of local authorities’ decisions and parties’
statements, and does not consider the case to have been particularly
complex. As to Government’s argument that the applicant was
responsible for part of the time as she appealed against unfavourable
judgments, the Court notes, for example, that the applicant’s
appeal against the first instance judgment of 30 December 1999
was successful, and that the proceedings on her appeal against the
Zhovtnevy Court’s judgment of 27 May 2002 were delayed because
the authorities’ representatives did not attend hearings on two
occasions.
- The
Court further notes that significant delays were caused by repetitive
adjournments of the case by the domestic courts due to the parties’
absence. At the same time, these delays were attributable not only to
the applicant’s representative but also to the local
authorities, whose representatives failed to appear before the courts
on numerous occasions. However, the domestic courts failed to take
any steps to assure the presence of the said persons in order to
proceed with the case.
- The
Court also observes that significant periods of delay are
attributable to the domestic courts. In particular, between 15
February and 5 October 2000, and between 26 June and 26 November
2002 the proceedings stagnated whilst the case was being transferred
between the first and the second instance courts.
- 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).
- 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 COMPLAINTS
- The
applicant also complained under Article 6 § 1
of the Convention about the unfair outcome of the civil and
administrative proceedings. She further complained under Article 1 of
Protocol No. 1 about a violation of her property rights.
- However,
in the light of all the materials in its possession, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to 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 10,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards award her EUR 1,600
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 85 for the costs and expenses incurred
before the Court.
- The
Government did not object to granting the applicant this amount.
- The
Court considers that the sum claimed should be awarded in full.
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, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i)
EUR 1,600 (one thousand and six hundred euros) in respect of
non-pecuniary damage;
(ii)
EUR 85 (eighty five euros) for costs and expenses;
(iii)
plus any tax that may be chargeable
to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 3 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
