BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
KOVALEV v. UKRAINE
(Application
no. 10636/05)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Kovalev 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. 10636/05) 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, Mr Aleksey Petrovich Kovalev (“the applicant”),
on 5 March 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
11 January 2010 the
President of the Fifth Section decided to give notice of the
application 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 1958 and lives in Odessa.
- On
23 December 1999 the applicant lodged a claim with the Kyivskyy
District Court of Odessa against the local land department. He sought
the acknowledgement of his ownership title over a land plot which
according to him was within his family estate.
- On
27 September 2000 the applicant lodged a claim with the Zhovtnevyy
District Court of Odessa against the municipal council seeking the
ownership certificates in respect of the disputed land to be declared
invalid. The two claims were subsequently joined into one case.
- K.,
a private person and the owner of the disputed land plot,
participated in the proceedings as a third party.
- On
16 August 2001 the Kyivskyy District Court of Odessa left the
applicant’s claims without examination in view of his repeated
failure to appear before the court. On 27 November 2001 the Odessa
Regional Court of Appeal quashed the ruling of 16 August 2001 and
sent the case for further examination.
- On
24 May 2002 the Kyivskyy District Court of Odessa found that the
applicant had no legal basis to claim a title to the land plot and
rejected his claims as unsubstantiated.
- On
6 September 2004 the Odessa Regional Court of Appeal dismissed the
applicant’s appeal which he had to re-submit on several
occasions in order to comply with procedural requirements and upheld
the judgment of 24 May 2002.
- On
5 October 2004 the applicant appealed in cassation.
- On
20 July 2007 the Kharkiv Regional Court of Appeal, acting as a court
of cassation, dismissed the applicant’s appeal in cassation and
upheld the decisions of the lower courts.
- The
applicant received a copy of the ruling of 20 July 2007 in September
2009 after he had lodged a number of enquiries with the courts.
- In
the course of the proceedings the applicant lodged a number of
procedural requests, some of which were allowed, including those
concerning the application of provisional measures, withdrawal of the
judges from his case, suspension of the proceedings in view of his
health problems and pending the outcome of a criminal case against a
private person concerning the matter. He also lodged appeals against
some of the procedural rulings and requested copies of documents from
the case-file. On six occasions the applicant failed to appear before
the courts or requested adjournment of the hearings because of his
health problems which caused a delay of about seven months. Another
five-month delay was caused by respondents’ non-appearance
before the courts.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- 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 ...”
A. Admissibility
- The
Government submitted that the applicant did not raise a complaint of
the lengthy examination of his case by the domestic courts.
- The
Court notes that in his application of 5 March 2005 the applicant
complained of a violation of Article 6 § 1 of the Convention in
respect of the examination of his case by the domestic courts and
quoted, inter alia, the part of Article 6 which guarantees the
right to “a ... hearing within a reasonable time”. The
Court therefore rejects the Government’s objection.
- The
Court further 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
applicant complained that the length of the proceedings had been
excessive.
- The
Government contested that argument. They maintained that the
proceedings were complex as the applicant had lodged two claims and
there had been a number of respondents involved. They further argued
that the applicant had significantly contributed to the length of the
proceedings by lodging appeals to the higher courts, some of which
had not been in compliance with procedural requirements, and by
lodging numerous procedural requests. The Government finally
submitted that there had been no delays which could be attributed to
the State.
- 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 period to be taken into consideration began on
23 December 1999 and ended on 20 July 2007. It thus lasted seven
years, six months and twenty-eight days.
- The
Court further notes that even though there were a number of
respondents and a third party involved in the proceedings, the case
did not concern any complex factual or legal issues.
- The
Court also observes that the parties indeed contributed to the length
of the proceedings by failing to appear, asking for adjournment of
the hearings or lodging procedural requests (see paragraph 14 above).
The Court however considers that the behaviour of the parties alone
cannot justify the overall length of the proceedings of about seven
years. In particular, the major delay was caused by the lengthy
examination of the applicant’s appeal in cassation (see
paragraphs 11 and 12 above). Furthermore, the cassation court
notified the applicant of the final decision only two years after it
had been adopted (see paragraph 13). The Court
therefore concludes that the State authorities bear the primary
responsibility for the excessive length of the proceedings in the
present case.
- 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; Pavlyulynets
v. Ukraine, no. 70767/01, §
49-53, 6 September 2005; and Vashchenko
v. Ukraine, no. 26864/03, § 50,
26 June 2008).
- 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 complained of a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 of unfairness and outcome
of the proceedings.
- In the light of the materials in
its possession, the Court finds that the applicant’s complaints
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 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 664,320 Ukrainian hryvnias (UAH)
in respect of pecuniary damage and UAH 85,000
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. On
the other hand, it awards the applicant EUR 1,200 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 5,465
for the costs and expenses incurred before the Court.
- The
Government did not express an opinion on the matter.
- Regard
being had to the documents in its possession and to its case law,
the Court awards the applicant EUR 556 covering the cost for
correspondence and legal assistance in the proceedings before the
Court.
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
1. Declares the complaint
under Article 6 § 1 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,
EUR 1,200 (one thousand two hundred euros) in respect of
non pecuniary damage and EUR 556 (five hundred fifty-six) for
costs and expenses, plus any tax that may be chargeable, to be
converted into 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
