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FIFTH
SECTION
CASE OF FANDRALYUK v. UKRAINE
(Application
no. 22775/03)
JUDGMENT
STRASBOURG
31
January 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 Fandralyuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Javier
Borrego Borrego,
Renate
Jaeger,
Mark
Villiger, judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22775/03) 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 Mariya Vasilyevna Fandralyuk (“the
applicant”), on 19 June 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
12 December 2006 the
Court decided to communicate the complaint concerning the length of
the first set of 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 1935 and lives in Kyiv, Ukraine.
First set of proceedings
- In
April 1994 the applicant instituted proceedings in the Irpin Town
Court (Ірпінський
міський суд
Київської
області) against
her former husband seeking to divide their property. The latter
lodged a counterclaim. On 18 August 1995 the court divided the
property between the applicant and her former husband.
- On 6 February 1996 the Kyiv Regional Court (Київський
обласний суд)
quashed this judgment and remitted the case for a fresh
consideration.
- On 23 December 1997 the Irpin Town Court adopted
another judgment on the division of property between the applicant
and her former husband. The court further rejected the remainder of
principal and counter claims.
- On 10 March 1998 the Kyiv Regional Court quashed this
judgment and, because of the complexity of the issues involved, took
over the case. In its ruling the court stated inter alia that
by partially rejecting the principal and counter claims the Irpin
Town Court in fact had left unsettled the matter of property right
over the house which was a part of the disputed property.
- In the course of the aforesaid proceedings a number of
forensic examinations have been ordered by the courts. In particular,
in their rulings of 22 October 1996 and 22 April 1999 the courts,
ordering additional examinations, noted inter alia that
“inasmuch as long period of time ha[d] lapsed since the
previous forensic examination[s]” they, accordingly, were
out-of-date and did not correspond to the actual state of things.
- By its letter of 16 July 2001 the Kyiv Regional Court
of Appeal remitted the case back to the first instance court for
examination. The court did not provide any reasoning for this
remittal except for a general reference to Article 31 of the
Judiciary Law, which, at the material time, set forth the competence
of a court of appeal.
- On 19 February 2002 the Irpin Town Court divided the
property between the applicant and her former husband. In particular,
the court held that the applicant did not have any property rights
regarding the house, in which she lived with her former husband.
- On 2 July 2002 the Kyiv Regional Court of Appeal
upheld this judgment.
- On 20 January 2003 the Supreme Court of Ukraine
rejected the applicant's appeal in cassation.
Second set of proceedings
- In April 2003 the applicant instituted proceedings in
the Irpin Town Court against her former husband complaining that he
had evicted her from the house in which they lived. She also sought
to move in the house in question. On 26 June 2003 the court found
against the applicant and held that the house in question was owned
by the applicant's former husband and a certain M. Moreover, in March
2003 the applicant's former husband had sold his part of the house to
D. Therefore, the applicant had no property rights over the house in
question and there were no legal grounds to move her in. On 21
October 2003 the Kyiv Regional Court of Appeal upheld this judgment.
On 29 August 2005 the Supreme Court of Ukraine rejected the
applicant's appeal in cassation.
THE LAW
I. THE LENGTH OF THE FIRST SET OF PROCEEDINGS
- The
applicant complained that the length of the first set of 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...”
A. Admissibility
- The
Court notes that the applicant's complaint about the length of the
proceedings 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
1. Period to be taken into consideration
- The
Government maintained that 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. Therefore,
the applicant's complaints related to the events prior to that date
should be rejected as incompatible ratione temporis.
- The
applicant argued that the period in question began in April 1994,
when she lodged her claim with the domestic courts.
- The Court notes that the proceedings complained of
began in April 1994 and were completed on 20 January 2003.
Their overall duration was eight years and nine months. The Court
recalls that the Convention entered into force in respect of Ukraine
on 11 September 1997, thus the period falling within the Court's
competence ratione temporis lasted five years and four months.
However, in assessing the reasonableness of the time that
elapsed after 11 September 1997, account must be taken of the
state of proceedings on that date (see Milošević v.
“the former Yugoslav Republic of Macedonia”,
no. 15056/02, § 21, 20 April 2006; Styranowski v.
Poland, no. 28616/95, § 46, ECHR 1998-VIII;
Foti and Others v. Italy, judgment of 10 December 1982,
Series A no. 56, p. 18, § 53).
2. Reasonableness of the length of the proceedings
- The
Government submitted that the length of the proceedings in the
applicant's case was reasonable. In particular, they stated that the
delays in the proceedings at issue had been caused by the applicant's
appeals. Further they pointed out that the case was complex and that
the judicial authorities had acted with a due diligence.
- 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).
- Turning to the facts of the present case, the Court
observes that the case concerned the division of property between the
applicant and her former husband and required the taking of expert
evidence. Although in the course of the proceedings the Kyiv Regional
Court took over the case because of its alleged complexity, the Court
notes that subsequently the Kyiv Regional Court remitted it back to
the first instance court. The Court is of the opinion that the
subject matter of the litigation at issue could not be considered
particularly complex either on the points of law or facts.
- The Court further recalls that, although a party to
civil proceedings cannot be blamed for using the avenues available to
him under domestic law in order to protect his interests, he must
accept that such actions necessarily prolong the proceedings
concerned (see Malicka-Wasowska v. Poland (dec.),
no. 41413/98, 5 April 2001). The Court notes that the applicant
has contributed to the overall length by contesting the judgments in
her case before the higher courts. Nevertheless, she cannot be held
primarily responsible for the length of the proceedings in the
instant case.
- The
Court observes that the case was twice remitted for a fresh
consideration (paragraphs 6 and 8 above). Therefore, it
considers that the delay in the proceedings was also caused by the
repeated re-examination of the case. Although the Court is not in a
position to analyse the quality of the case-law of the domestic
courts, it observes that, since remittal is usually ordered because
of errors committed by lower courts, the repetition of such orders
within one set of proceedings discloses a serious deficiency in the
judicial system (Wierciszewska v. Poland, no. 41431/98, §
46, 25 November 2003). Moreover, it is the role of the
domestic courts to manage their proceedings so that they are
expeditious and effective (see Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 183, ECHR 2006-...).
- By
the same token these remittals led to further delays given the
courts' need for updated forensic expert reports (paragraph 9
above).
- The
Court further points out that the length of the proceedings was
mainly caused by the Kyiv Regional Court's taking over the case and
its subsequent remittal to the first instance court (paragraphs 8-10
above). Neither the Kyiv Regional Court in its letter of 16 July
2001, nor the Government in their observations have specified the
reasons for such remittal or for the inability of the Regional Court
to decide the case after more than three years' consideration. In the
Court's view this approach can hardly be considered as an expeditious
and effective management of the proceedings.
- 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 e.g. Pavlyulynets v. Ukraine,
no. 70767/01, §§ 46-53, 6 September 2005 and
Moroz and Others v. Ukraine, no. 36545/02, § 55-62,
21 December 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
COMPLAINTS
- The
applicant also complained under Article 6 § 1 about an allegedly
unfair hearing and the outcome of the civil proceedings and, without
reference to any Article of the Convention, about her eviction from
her only place of residence. Lastly, the applicant complained under
Article 1 of Protocol No. 1 of a violation of her property rights.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far 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.
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 51,555
Ukrainian hryvnas (UAH) in respect of pecuniary damage and EUR 5,000
in respect of non-pecuniary damage.
- The
Government did not express an opinion on the matter.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
to the claim for non-pecuniary damage, the Court is of opinion that
in the circumstances of the case it is not necessary to afford to the
applicant any just satisfaction other than that resulting from the
finding of a violation of her rights.
B. Costs and expenses
- The
applicant also claimed UAH 4,971.67
for the costs and expenses. In this respect she provided the vouchers
amounting in total to UAH 1,721.67.
She also submitted that she had been represented by a lawyer at the
domestic proceedings but could not provide the relevant vouchers
since her case-file had been destroyed by fire.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 200.
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 under Article 6 § 1
of the Convention concerning the excessive length of the first set of
proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of excessive length of the
first set of proceedings;
- Holds that the preceding findings amount in
themselves to adequate just satisfaction under
Article 41 of the Convention;
4. 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 200 (two
hundred euros) in respect of 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 to
her;
(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;
5. Dismisses the
remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
