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FIFTH
SECTION
CASE OF SURDINA v. UKRAINE
(Application
no. 5547/07)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Surdina v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André
Potocki, judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 5547/07) against Ukraine
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an
Israeli national, Ms Viktoriya Vitaliyivna Surdina (“the
applicant”), on 10 January 2007.
2. The
applicant was represented by Mr I. Y. Fomin, a lawyer practising in
Kyiv. The Ukrainian Government (“the
Government”) were represented by their Agent, Ms V. Lutkovska,
of the Ministry of Justice.
- On
10 September 2010 the
Court 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
applicant was born in 1966 and lives in
Tel-Aviv.
- On
19 October 1998 Mr S. instituted proceedings in the Kirovskyy
District Court of Dnipropetrovsk against the applicant and the
company V. seeking division of inheritance.
- On
20 October 1998 the applicant instituted proceedings in the
Babushkinskyy District Court of Dnipropetrovsk seeking endorsement of
her right to the inheritance.
- On
26 February 1999 the applicant lodged with the Kirovskyy District
Court a counterclaim against Mr S.
- On
21 August 1999 the Babushkinskiy Court transferred the applicant’s
case to the Kirovskyy Court.
- On
25 October 1999 the Kirovskyy Court joined the claims lodged on 19
and 20 October 1998.
- On
28 September 2000 the court rejected the request of Mr S. to order
the attachment of the disputed property. On 30 October 2000 the
Dnipropetrovsk Regional Court quashed that decision and remitted the
matter to the first instance court for fresh consideration.
- On
12 December 2000 the court refused to order the attachment. That
decision was not appealed against.
- On
2 June 2004 the applicant requested the court to order the attachment
of the disputed property.
- On
25 January 2005 the court rejected that request.
- On
18 April 2005 the Dnipropetrovsk Regional Court of Appeal quashed
that decision and remitted the matter to the first instance court for
fresh consideration, the outcome of which is unknown.
- On
25 November 2009 the court endorsed the friendly settlement concluded
by the parties.
- Fifty-nine
hearings were scheduled in the applicant’s case. According to
the Government, the applicant was responsible for the adjournment of
twenty-one hearings, while other parties in the case were responsible
for further thirty-one adjournments.
THE LAW
I. COMPLAINTS CONCERNING THE LENGTH OF PROCEEDINGS AND
LACK OF DOMESTIC REMEDIES IN THAT RESPECT
- 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, in so
far as relevant, as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- She
also complained that there was no effective remedy for her complaint
about the length of the proceedings. The Court considers that this
complaint falls to be examined under Article 13 of the Convention
which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- As
regards the complaint under Article 6 § 1 of the Convention, the
Government submitted that the case was not complex and there were no
delays attributable to the Government, while the protraction of the
proceedings was due to the number of the parties to the case, the
volume of the materials to be examined by the court and the conduct
of the parties who had failed to appear and lodged procedural
requests. The Government further contended that there had been no
violation of Article 13 of the Convention either. The Government also
submitted that the applicant had failed to institute disciplinary
proceedings against the judges dealing with her case for the alleged
violation of the procedural law.
20. The
Court notes that the the proceedings in question began on 19 October
1998 and ended on 25 November 2009. They thus lasted for
eleven years and one month before the first instance court.
A. Admissibility
- The
Court notes that the above complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 6 § 1 of the Convention
22. 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 considers that, although the applicant contributed to the
overall length of the proceedings by failing to appear before the
court on several occasions and lodging procedural requests, the main
responsibility for the protracted length of the proceedings rests
with the domestic courts. In this context, the Court reiterates that
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 V).
Turning to the circumstances of the present case, the Court notes
that there is nothing to suggest that the court could not have
considered the case in the parties’ absence (see Golovko v.
Ukraine, no. 39161/02, § 59, 1 February 2007). On the whole,
there is no acceptable justification for such a lengthy period during
which the dispute, which did not involve complicated factual or legal
issues, and was eventually settled by the parties, remained pending
before the court of a single judicial level
- 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.
2. Article 13 of the Convention
- The
Court has frequently found violations of Article 13 of the
Convention, stating that the current Ukrainian legislation does not
provide a remedy for complaints concerning the length of proceedings
(see Efimenko v. Ukraine, no. 55870/00, 18 July 2006). In the
present case the Court finds no reason to depart from that case-law.
- There
has accordingly also been a breach of Article 13.
II. OTHER COMPLAINTS
- The
applicant complained under Article 1 of Protocol No. 1 that because
of the lengthy consideration of her case she could not use her
property. She further complained that the court decision to attach
the disputed property had been cancelled.
- 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 (a) 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 15,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government contested that claim.
- The
Court, ruling on an equitable basis, awards the applicant
EUR 4,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims under that
head. Therefore, the Court makes no award.
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 proceedings
and under Article 13 of the Convention about the lack of domestic
remedies in that respect admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months, EUR 4,500 (four thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the national currency 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 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger Deputy
Registrar President
