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FIFTH
SECTION
CASE OF GEREGA v. UKRAINE
(Application
no. 30713/05)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Gerega v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 30713/05) 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 Galyna Marianivna Gerega (“the applicant”),
on 26 July 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
16 March 2010 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the court
proceedings in the applicant’s case to the Government. In
accordance with Protocol No. 14, the application was allocated to a
Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in the Lviv Region.
- In
1991 Mr A. (the applicant’s relative) lodged a claim with the
Staryy Sambir Court against the applicant challenging her title to a
house which she had inherited under her aunt’s will. In 1993,
following the request of Mr A., the court discontinued the
proceedings.
- On
24 July 1997, following the request of the widow of Mr A. (who had
died in the meantime), the same court re-opened the case under the
newly-discovered circumstances procedure.
- On
6 September 2000 the Galytskyy District Court of Lviv delivered a
judgment in the case. On 18 December 2000 the Lviv Regional Court of
Appeal quashed it and remitted the case for fresh consideration.
- On
18 March 2003 the Galytskyy Court invalidated a part of the will.
- On
23 June 2003 and 15 November 2004 respectively the Lviv Court of
Appeal and the Supreme Court upheld the above judgment. The applicant
received the decision of 15 November 2004 on 29 January 2005.
- Subsequently,
the applicant unsuccessfully sought review of the case under the
newly-discovered circumstances procedure.
- According
to the Government, in the course of the proceedings two hearings were
adjourned upon the applicant’s requests, three hearings due to
her failure to appear and three other hearings due to both parties’
failure to appear. The applicant disagreed. According to her, between
3 and 30 June 2000 she underwent in-patient treatment and thus could
not attend one of the hearings referred to by the Government. Three
hearings were adjourned due to the absence of the judge or upon the
other party’s request.
THE LAW
I. SCOPE OF THE CASE
- Following the Court’s
partial admissibility decision of 16 March 2010, the applicant made
further submissions, in which she reiterated the complaints she had
made when lodging the application.
- In its partial admissibility
decision, the Court adjourned the examination of the applicant’s
complaint about the length of the court proceedings. Furthermore, it
declared the remaining complaints inadmissible. Therefore, the scope
of the case before the Court is now limited to the
length-of-proceedings complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the court proceedings in her
case 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 stating, in
particular, that the case had been complex and that the applicant had
contributed to the length of the proceedings by having failed to
attend some of the hearings and by having lodged several procedural
requests.
- The
Court notes that the period to be taken into consideration began on
11 September 1997, when the recognition by Ukraine of the right of
individual petition took effect. However, 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 29 January 2005, when the applicant was served with
a copy of the final ruling (see Widmann
v. Austria,
no. 42032/98, § 29, 19 June
2003, and Gitskaylo v. Ukraine,
no. 17026/05, § 34, 14 February 2008). The
proceedings thus lasted for about seven years and four months and
involved the courts of 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
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 circumstances of the case, the Court notes that substantial
delays in the proceedings took place during the consideration of the
case by the courts of first instance (three years and over two years,
respectively). Having regard to the material in its possession, the
Court considers that the complexity of the case and the applicant’s
conduct cannot justify these delays. As the Government failed to
provide plausible explanation in this respect, the Court finds that
the main responsibility for the protracted length of the proceedings
rested with the State.
- 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, among many other
authorities, Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; and Moroz
and Others v. Ukraine, no. 36545/02,
§ 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.
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 50,000 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. Ruling on an equitable basis, it awards her EUR 1,200
under this head.
B. Costs and expenses
- The
applicant claimed 2,000
Ukrainian hryvnias (UAH) for the expenses incurred by her in the
domestic proceedings and for correspondence expenses in the
proceedings before the Court. She provided copies of postal receipts
for correspondence with the Court to the amount of UAH 467.16.
- The
Government contested the above claim.
- Regard
being had to the documents in its possession and to its case-law, the
Court rejects the claim for expenses in the domestic proceedings and
awards the applicant EUR 45 for the proceedings before it.
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 remainder of the application
admissible;
- 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,
EUR 1,200 (one thousand two hundred euros) in respect of
non-pecuniary damage and EUR 45 (forty five euros) in costs and
expenses, plus any tax that may be chargeable, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement;
(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 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
