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FIFTH
SECTION
CASE OF PETRENKO v. UKRAINE
(Application
no. 20330/03)
JUDGMENT
STRASBOURG
12
June 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Petrenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 20 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20330/03) 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, Mrs Yuliana Valentinovna Petrenko
(“the applicant”), on 30 April 2003. The
applicant was represented by her grandfather and legal guardian,
Mr Aleksandr Khaymovich Bereslavskiy.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
24 October 2006 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1994 and lives in Mykolayiv.
A. Background
- After
the death of the applicant's mother in 1995, Mr Bereslavskiy,
the applicant's maternal grandfather, and his wife were appointed her
legal guardians.
- In
1996 the family of Mr V.P., the applicant's father, decided to
sell two family apartments, one of them co-owned by the applicant and
the other one by two other minors, O.D. and S.D., and to purchase a
house. Mr V.P. obtained permission of the tutelage board to sell
the applicant's share in an apartment, having promised in exchange to
assign to the applicant a comparable share of the house to be
purchased. A similar permission was obtained in respect of the shares
owned by the other two minors in the other apartment.
- On
15 July 1996 the apartment formerly co-owned by the
applicant was sold to Ms S.L.. On 9 October 1996
Ms S.L. sold it on to Mr V.Kh. and Mrs A.Kh. The
apartment formerly co-owned by O.D. and S.D. was also sold. However,
the newly purchased house was registered solely in the name of
Mrs N. P., one of the P. family members.
B. Civil proceedings
- On
15 September 1997 the Leninsky District Prosecutor of Mykolayiv
(Прокурор
Ленінського
району м. Миколаїва)
instituted civil proceedings with the Zhovtnevy District Court
of Odessa (Жовтневий
районний суд
м. Одеса)
on the applicant's behalf, seeking annulment of the sales contracts
in respect of the apartment formerly co-owned by her. Subsequently,
the prosecutor orally modified his claims and sought compensation for
the applicant's share in the apartment.
- Mr Bereslavskіy
took part in the proceedings as the applicant's statutory agent. Four
members of the P. family (the former
co-owners of the applicant's apartment) and
Ms S.L., its first buyer, were summoned to the proceedings as
defendants. Mr V.Kh. and Mrs A.Kh. were summoned as “third
parties” (треті
сторони).
Subsequently the proceedings were joined with the proceedings brought
by the Kominternivsky District Prosecutor of Odessa (Прокурор
Комінтернівського
району м. Одеса)
on behalf of O.D. and S.D. with similar claims concerning the
sale of the other apartment.
- Between
September 1997 and May 1999 the District Court scheduled
some twenty hearings with intervals ranging from several days to four
months. Ten of these hearings were adjourned on account of the
absence of one or more of the individuals taking part in the
proceedings, excluding the applicant. Two hearings were postponed on
account of various court matters.
- On
27 May 1999 the District Court found that the annulment of
the sales contracts in respect of the applicant's apartment would
lead to the infringement of interests of the bona fide
purchasers and ordered the four former owners of the apartment to pay
the applicant 16,342.99 Ukrainian hryvnias (UAH) in compensation
for her share in the apartment. Mr V.P. appealed in cassation.
- On
20 June 2000 the Odessa Regional Court (Одеський
обласний суд)
quashed this judgment and remitted the case for a fresh
consideration. It found that the District Court had failed to examine
a number of material circumstances of the case and that the claim
concerning compensation instead of the annulment of the contracts had
never been properly formalised.
- On
16 November 2001 the District Court imposed a fine on
Mr V.Kh and Mrs A.Kh. for their repetitive failures to
appear for the hearings.
- On
27 February 2002 the District Court discontinued
proceedings in respect of the claims brought on behalf of O.D. and
S.D. on the ground that, having reached the age of majority, they
refused to support them.
- Between
June 2000 and June 2002 the District Court scheduled some
fourteen hearings. Eight hearings were adjourned on account of the
absence of one or more of the individuals taking part in the
proceedings, excluding the applicant. Four hearings were postponed on
account of various court matters. No hearings were scheduled between
22 November 2000 and 18 June 2001.
- On
3 June 2002 the District Court awarded the applicant
UAH 22,297 against the four former co-owners of the apartment,
in compensation for her share in the apartment, referring to
essentially the same grounds as in its previous judgment. The
defendants appealed.
- On
7 November 2002 the Regional Court upheld the judgment of
3 June 2002. Enforcement proceedings were instituted to
collect the judgment award. After the expiration of the statutory
time-limit for lodging a cassation appeal, this judgment became
final.
- On
19 February 2004, while the enforcement proceedings were
still pending, two of the defendants requested renewal of the
time-limit for lodging appeal in cassation against the judgment of
3 June 2002. Their request was granted and on 1 April 2004
their cassation appeal was transferred to the Supreme Court of
Ukraine.
- On
15 September 2004 the Supreme Court rejected the defendants' request
for leave to appeal in cassation.
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.
- The
period to be taken into consideration began on 15 September 1997
and ended on 15 September 2004. It thus lasted seven years
for three levels of jurisdiction.
A. Admissibility
- The
Court notes that the application 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).
- Turning
to the facts of the present case, the Court observes that the dispute
before the domestic authorities was of some complexity, particularly,
in view of the number of individuals involved in the proceedings.
However, in the Court's view, this complexity alone cannot explain
the general duration of the proceedings. It finds that significant
delays attributable to domestic authorities, include, in particular,
a remittal of the case for a fresh consideration on account of the
non-observance of procedural formalities and lack of exhaustive
analysis of the circumstances of the case; repetitive adjournments of
hearings on account of the court matters and absences of the
defendants and third parties and a seven-month interval in scheduling
hearings between November 2000 and June 2001. The Court
further notes that the Government has not provided any explanation as
to why the statutory time-limit for lodging a cassation appeal was
renewed for the defendants more than a year after the pronouncement
of the final judgment.
- 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 e.g. Siliny v. Ukraine, no. 23926/02,
§ 34, 13 July 2006; Teliga and Others v. Ukraine,
no. 72551/01, § 95, 21 December 2006 and
Moroz and Others v. Ukraine, no. 36545/02, §§ 59-60,
21 December 2006).
- Having
examined all the material submitted to it and 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. 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 4,535.99 euros (EUR) in respect of pecuniary damage
and EUR 5,000 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 finds that the applicant must have sustained
non-pecuniary damage on account of the length of the proceedings.
Ruling on an equitable basis, it awards the applicant EUR 1,200
in this respect.
B. Costs and expenses
- The
applicant also claimed EUR 720 for the costs and expenses.
However, he failed to submit necessary documents in support of his
claims.
- The
Government submitted that this claim should be rejected as
unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. The Court considers that these requirements
have not been met in the present case. It therefore gives 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 application admissible;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200
(one thousand two 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 12 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
