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FIFTH
SECTION
CASE OF KALYUZHNA v. UKRAINE
(Application
no. 16443/07)
JUDGMENT
STRASBOURG
7 April
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kalyuzhna 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 15 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 16443/07) 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, Ms Larysa Mykhaylivna Kalyuzhna (“the applicant”),
on 3 April 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 May 2009 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 CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Zaporizhzhya.
A. Proceedings prior to 1990
- On
an unspecified date the Zavodsky District Court of Zaporizhzhya (“the
District Court”) gave an unspecified decision on the claim of
the applicant’s former husband, Z., lodged against the
applicant for division of their property. By a final ruling of
5 February 1985, the Zaporizhzhya Regional Court (“the
Regional Court”, since June 2001, the Zaporizhzhya Regional
Court of Appeal), ordered Z. to compensate the applicant for her
share of their property.
- In
1985 the Prosecutor’s Office of Zaporizhzhya and the Zavodsky
District Police Department invited the applicant to discuss the
residence registration of her daughter, O.
- In
1988-1989 the applicant lodged claims with the Budenovsky District
Court of Donetsk and Donetsk Regional Court seeking division of her
common property with Z. There is no indication whether and, if so,
how these claims were handled by the courts.
B. Proceedings against K.Vi. and K.Vo.
- In
1991-2005 the applicant unsuccessfully tried to have her brothers,
K.Vi. and K.Vo., prosecuted for hooliganism and theft. She was not
found to be a civil party to these proceedings.
C. Civil proceedings
- On
9 November 1992 K.Vi. and K.Vo. lodged a claim against the applicant
challenging the validity of their mother’s will over a house
and belongings.
- On
25 September 1998 the District Court partly allowed the claim.
- Following
a “protest” of the Zaporizhzhya Regional Prosecutor of
25 September 1998, the Regional Court quashed this judgment on
25 December 1998 and remitted the case to the Distrcit Court
which, on19 February 2004 partly
allowed the applicant’s claim.
- On
26 May 2004 the Regional Court upheld this judgment. On 22 June
the applicant appealed in cassation. On 12 July 2006 she requested
the Supreme Court to speed up examination of her case. By a final
ruling of 4 October 2006, notified to the applicant on 19
October, the Supreme Court upheld the lower court’s decisions.
- According
to the Government, between 11 September 1997 and 4 October 2006,
the applicant filed three procedural requests and two appeals which
all met procedural requirements. Moreover, of the twenty nine
hearings scheduled, eleven were adjourned at the claimants’
request, five were adjourned at the applicant’s request, four
were adjourned due to the claimants’ or witness’s failure
to attend, one was adjourned due to the applicant’s failure to
attend, one was adjourned at the parties’ request, and three
were adjourned for reasons beyond the parties’ control.
Overall, due to the applicant’s requests or her failure to
attend, the proceedings were delayed for about eleven moths.
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, 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 ...”
- The
Government contested that argument.
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
period to be taken into consideration began on 11 September 1997,
when the Convention entered into force with regard to Ukraine.
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 19 October 2006. It
thus lasted more than nine years and one month for three levels of
jurisdiction.
- The
Government maintained that the parties had been
responsible for several delays, in particular the applicant
had filed procedural requests and appeals. Nevertheless, the
proceedings were conducted within reasonable time, according to the
Government.
- The
applicant disagreed.
- 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, e.g., Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- In
the case at hand, the Court notes that the applicant’s property
rights were at stake and the matter was, therefore, of some
importance to her. It further considers that the subject matter of
the litigation was not complex.
- With
regard to the applicant’s conduct, the Court accepts the
Government’s argument that there were certain delays
attributable to the applicant (see paragraph 13 above). However,
in respect of her procedural requests and appeals, the Court notes
that she merely exercised her procedural rights and cannot be blamed
for using the avenues available to her under the domestic law in
order to protect her interests (see, Silin v. Ukraine,
no. 23926/02, § 29, 13 July 2006).
- The Court notes that the conduct
of the parties to the domestic proceedings cannot explain the overall
length of the proceedings at issue in the present case. It finds that
the main delay in the proceedings took place during the examination
at the first-instance court that lasted, taking into consideration
the Court’s competence ratione temporis,
more than six years and five months. Another substantial delay
was caused by the Supreme Court that reviewed the case for more than
two years and three months.
- 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.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant also complained that the length of the proceedings had
resulted in an infringement of her right to respect for her home
contrary to Article 8 of the Convention.
- Having
regard to the findings in the paragraphs 21-26 above, the Court
concludes that this complaint must be declared admissible, but that
it is not necessary to examine it on the merits (see, mutatis
mutandis, Laino v. Italy [GC], no. 33158/96,
§§ 23-25, ECHR 1999 I, and S.C. Prodcomexim
SRL v. Romania (no. 2), no. 31760/06, § 48, 6 July
2010).
III. OTHER COMPLAINTS
- The
applicant further complained under Article 6 § 1 of the
Convention that the proceedings on Z.’s claim had been unfair
and she had been prevented from accessing courts in the Donetsk
region. Relying on Article 13 of the Convention, she complained
of the lack of prosecution of K.Vi. and K.Vo. for taking her and O.’s
property and assaulting their honour and reputation.
- She
argued that that due to the excessive length of the civil proceedings
her right to elect or be elected had been violated in contravention
of Article 3 Protocol No. 1. In respect of the length of the
proceedings, she additionally argued that her right to social
security had been infringed.
- The
applicant alleged that the prosecutors and police had forced her to
register her residence in Zaporizhzhya contrary to Article 2
Protocol No. 4. Referring to Article 1 Protocol No. 1, she
in substance complained of the assessment of evidence in the civil
proceedings. Finally, she complained that since 1976 the State had
continuously failed to respect O.’s rights for residence,
health care, subsistence and education. Lastly, in her submissions of
9 November 2009, she additionally complained under Article 13 of
the Convention and Article 1 Protocol No. 1 in respect of the length
of the civil proceedings.
- 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 (a) and 4 of the Convention.
IV. 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 UAH 200,000 (16,000 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 2,400
under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore 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 concerning the excessive
length of the civil proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the
length of the proceedings;
- Holds that there is
no need to examine on the merits the complaint under Article 8
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 2,400 (two thousand four hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable to the
applicant, to be converted into the national currency of the
respondent State at the rate applicable on 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 7 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
