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FIFTH
SECTION
CASE OF SHEPTITSKAYA AND SHEPTITSKIY v. UKRAINE
(Application
no. 23747/05)
JUDGMENT
STRASBOURG
3 March
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Sheptitskaya 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 8 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 23747/05) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Ukrainian
nationals, Ms Natalya Anatolyevna Sheptitskaya (“the first
applicant”) and Mr Bohdan Valeriyevich Sheptiskiy (“the
second applicant”), on 31 May 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
24 November 2009 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
applicants were born in 1971 and 1997, respectively, and live in
Kherson.
- On
8 November 2000 S., the first applicant’s former husband,
lodged a claim with the Komsomolskyy District Court of Kherson (“the
Komsomolskyy Court”) against the first applicant, challenging
her right to use a flat.
- On
13 November 2000 the Komsomolskyy Court, hearing the case in the
absence of the first applicant, allowed the claims of S. and found
that the applicant had lost the right to use the disputed flat. The
judgment became final.
- On
30 November 2000 the first applicant lodged with the Komsomolskyy
Court a claim against S. and the Kherson Town Council challenging the
right of S. to use the disputed flat. It was subsequently joined to
the proceedings instituted against the applicant by S.
- On
an unspecified date the prosecutor lodged with the Presidium of the
Kherson Regional Court a protest seeking the annulment of the
judgment of 13 November 2000, stating that the case had been
heard in the absence of the first applicant who had not been notified
of the date and time of the hearing.
- On
26 April 2001 the Presidium of the Kherson Regional Court allowed the
protest, quashed the judgment of 13 November 2000 and remitted the
case for a fresh consideration.
- At
the hearings on 22 March 2001, 28 February 2002 and 1 April 2004 the
first applicant, acting also on behalf of the second applicant, her
minor son, lodged additional claims against S. and a number of
private persons for compensation for damage based on the same
circumstances. She also sought the annulment of the contracts by
which the disputed flat had been transferred to those persons.
- On
16 October 2001 the Komsomolskyy Court allowed the applicants’
claims in full. It found that S. had lost the right to use the
disputed flat and acknowledged the applicants’ right to use it.
It obliged the Kherson Town Council to conclude a residential lease
agreement with the applicants.
- On
5 February 2003 the Kherson Court of Appeal, on an appeal by S. which
he had had to resubmit on several occasions because of his failure to
comply with procedural requirements, quashed the judgment of
16 October 2001 and remitted the case for a fresh consideration.
- On
20 July 2004 the Komsomolskyy Court rejected the applicants’
claims. It found that the applicants had voluntarily left the
disputed flat in 1997 and subsequently resided elsewhere. The flat
was privatised by the first applicant’s former husband. The
applicants therefore lost their right to use the disputed flat.
- On
12 August 2004 the applicants appealed against the judgment of 20
July 2004.
- On
8 December 2004 the Kherson Regional Court of Appeal dismissed the
appeal and upheld the judgment of 20 July 2004.
- On
11 February 2005 the applicants lodged an appeal in cassation and a
request for extension of the relevant time-limit. On 1 March 2005 the
Komsomolskyy Court granted the applicants the extension requested.
- On
12 May 2007 the Supreme Court transferred the case for examination to
the Kirovohrad Regional Court of Appeal.
- On
2 October 2007 the Kirovohrad Regional Court of Appeal, acting as a
court of cassation, quashed the ruling of 8 December 2004 and
remitted the case for re-consideration by the Kherson Regional Court
of Appeal, having found that the latter had failed to notify the
applicants about the date and time of its hearings.
- Following
a new consideration on appeal and an examination in cassation, on 11
December 2007 and 9 April 2008, respectively, the Kherson Regional
Court of Appeal and the Supreme Court upheld the judgment of 20 July
2004.
- In
the course of the proceedings there were forty-one hearings held, of
which six were adjourned because of the first applicant’s
failure to attend and eighteen because the other parties had failed
to attend the hearings.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicants 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 ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicants complained that the length of the proceedings had been
excessive.
- The
Government submitted that the delays in the examination of the case
had been caused by the complexity of the matter and by the behaviour
of the parties, namely because of the parties’ repeated failure
to appear before the courts and due to the appeals they had lodged
with the higher courts. The Government admitted that there had been
delays, resulting from the high work load of the Supreme Court. The
case was however promptly and effectively dealt with due to the
introduction of changes to the Judiciary Act allowing civil cases to
be examined in cassation by courts of appeal.
- The Court notes that the period to be taken into
consideration began on 8 November 2000 and ended on 9 April 2008. It
thus lasted about seven years and four months for three levels of
jurisdiction, excluding the period between 13 and 30 November 2000
when no proceedings were pending in the case (see Markin
v. Russia
(dec.), no. 59502/00, 16 September
2004, and Pavlyulynets v.
Ukraine,
no. 70767/01, §§ 41-42, 6 September 2005).
- 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 observes that the case concerned a dispute as to the right to
use a flat which had arisen mainly between the applicants and the
first applicant’s former husband. It also involved the
determination of the rights of their minor child, the second
applicant, and was eventually complicated by the additional claims
lodged by the applicants (see paragraph 10 above). The Court also
notes that the first applicant somewhat contributed to the length of
proceedings, in particular by failing to attend six court hearings.
- The
Court however considers that the complexity of the case and the first
applicant’s behaviour alone cannot justify the overall length
of the proceedings of seven years and four months. It notes that the
delays in the proceedings were mainly caused by repeated remittals of
the case (see paragraphs 9, 12 and 18 above). The Court also notes
that the applicants’ appeal in cassation had been pending
before the courts for two years and seven months without any
acceptable justification for such a delay (see paragraphs 16-17
above). It further observes that the proceedings were adjourned on a
substantial number of occasions because of the respondent’s and
third parties’ failure to appear and it was not suggested in
the case that the domestic courts had applied any measures to ensure
the parties’ appropriate behaviour (see paragraph 20 above).
The Court therefore finds 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
applicants complained of a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 on account of the outcome
and unfairness of the proceedings.
- In the light of the materials in
its possession, the Court finds that the applicants’ 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 (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
applicants claimed 20,000 euros (EUR) in respect of pecuniary and EUR
4,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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 applicants jointly EUR 1,200 in respect
of non pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 130 for the costs and expenses incurred
before the domestic courts and before the Court.
- The
Government submitted that the applicants’ claims were supported
by copies of relevant documents only in part. They contended that the
remainder of the claims were not related to the examination of the
case by the Court.
- The
Court notes that the applicants provided relevant supporting
documents in respect of the amount of EUR 77 which they had spent for
corresponding with the Court and for translation of relevant
documents. It therefore awards the applicants jointly this amount for
costs and expenses.
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 applicants’ complaint under
Article 6 § 1 of the Convention of 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 applicants jointly, within three
months, EUR 1,200 (one thousand two hundred euros) in respect of
non pecuniary damage and EUR 77 (seventy seven euros) for 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
