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FIFTH
SECTION
CASE OF
SHCHUROV v. UKRAINE
(Application
no. 5050/07)
JUDGMENT
STRASBOURG
6 October
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Shchurov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 5050/07) 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 Mykola Yevgenovych Shchurov (“the
applicant”), on 4 January 2007.
2. The
applicant was represented by Ms N. Savchenko, a lawyer practising in
Kyiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Ms Valeria
Lutkovska, of the Ministry of Justice.
- On
25 August 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Kyiv.
- On
1 December 1993 he lodged a claim with the domestic courts against
four private individuals in a dispute over inheritance.
- On
6 November 2001 the Svyatoshynskyy District Court of Kyiv (“the
District Court”) rejected the claim as unsubstantiated.
- On
14 January 2002, following the applicant’s failure to lodge his
appeal against the above judgment in accordance with the procedural
requirements, the District Court returned it unexamined.
- On
21 August 2002, following the applicant’s failure to lodge his
appeal against the ruling of 14 January 2002 in accordance with the
procedural requirements, the District Court returned it unexamined.
- On
13 September 2002, following the applicant’s failure to lodge
his appeal against the ruling of 21 August 2002 in accordance with
the procedural requirements, the District Court returned it
unexamined. On 30 March 2005 and 14 July 2006 respectively, the
Kyiv City Court of Appeal and the Supreme Court upheld the ruling of
13 September 2002.
- According
to the Government, in the course of the proceedings the applicant
amended his claim on two occasions. The courts adjourned twelve
hearings following the applicant’s requests or due to his and
other parties’ failure to appear. The applicant stated that he
had not been duly informed of one of the hearings. The above delays
on the applicant’s part protracted the proceedings by
approximately ten months. Some thirty five hearings were further
adjourned following other parties’ requests, their failure to
appear, due to the absence of a judge or for unspecified reasons.
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 stating, in
particular, 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
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. 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 14 July
2006. The proceedings thus lasted eight years and ten months before
three levels of jurisdiction.
A. Admissibility
- The
Court notes that the 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).
16. The
Court considers that the complexity of the case and the conduct of
the applicant, who somewhat contributed to the length of the
proceedings (see paragraphs 7-10 above), cannot explain their overall
length. On the other hand, the Court finds that the protraction of
the proceedings was mainly caused by the lengthy consideration of the
case by the District Court (see paragraphs 5-6) and by the repeated
adjournments of the hearings (see paragraph 10 above). It concludes,
therefore, that the main responsibility for the lengthy duration of
the proceedings rests 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 Frydlender,
cited above; 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.
II. REMAININIG COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention about
the outcome and unfairness of the proceedings, partiality of judges
and lack of access to a court.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession and in so far as the matters
complained of are within its competence, the Court finds that 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, costs and expenses
- The
applicant claimed 50,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage.
- The
Government contested the claim.
- 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
1,600 in respect of non-pecuniary damage.
B. 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 EUR 1,600 (one thousand six hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
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 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 6 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M.
Zupančič Deputy Registrar President
