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FIFTH
SECTION
CASE OF PAVLOVSKA v. UKRAINE
(Application
no. 36949/02)
JUDGMENT
STRASBOURG
3 July 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 Pavlovska v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 10 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 36949/02) 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 Lidiya Ivanivna Pavlovska (“the
applicant”), on 23 September 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
16 October 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings 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 1951 and lives in the city of L’viv,
Ukraine.
- On
19 April 1999 the Shevchenkivsky District Administration of the L’viv
City Council appointed the applicant as tutor of her disabled sister,
P.
- On
6 October 1999 the applicant instituted proceedings in the
Shevchenkivsky District Court of L’viv [Шевченківський
районний суд
м. Львова]
against M., seeking rescission of a purchase contract of an
apartment, concluded between him and P. Subsequently it was
established that the apartment in question had been resold to G. and
the latter, accordingly, was joined to the proceedings as a
co-defendant.
- On 1 November 1999 the court ordered the forensic
psychiatric examination of P. It also ordered attachment of the
disputed apartment.
- On
21 April 2000 the expert report was submitted. According to this
report, when concluding the above contract P. lacked legal capacity
to act.
- On
17 October 2000 the court ordered an additional forensic psychiatric
examination.
- On
18 December 2000 the second expert report confirmed the conclusions
of the first examination.
- On
5 April 2001 the court ordered a repeated forensic psychiatric
examination. The applicant appealed against this ruling.
- On
7 May 2001 the L’viv Regional Court upheld the ruling in
question. In particular, it pointed out that ordering another expert
examination was necessary in so far as the previous ones were not
comprehensive.
- On
9 July 2001 the third expert reached the same conclusions as the
previous ones.
- On
23 November 2001 the court ordered an expertise of the apartment’s
value.
- On
26 December 2001 the expert report was submitted. According to this
report, the disputed apartment cost 17,478
Ukrainian hryvnas (UAH).
- On
4 January 2002 the Shevchenkivsky District Court of L’viv
allowed the applicant’s claim, invalidated the contracts at
issue and awarded G. compensation in the amount of the apartment’s
value. The applicant appealed.
- On
25 March 2002 the L’viv Regional Court of Appeal [Апеляційний
суд Львівської
області]
(hereinafter “the Court of Appeal”) upheld the judgment
of the first instance court. The applicant appealed in cassation.
- On 12 November 2003 the Supreme Court of Ukraine,
pointing out a number of the lower courts’ shortcomings,
quashed the judgment of 4 January 2002 and the decision of 25
March 2002, and remitted the case for a fresh consideration to the
first instance court.
- On
26 May 2004 the Lychakivsky District Court of L’viv
[Личаківський
районний
суд м. Львова]
(hereinafter “the District Court”), to which the case was
transferred, allowed the applicant’s claim in part, invalidated
the contracts at issue and awarded UAH 4,000
to be paid to M. by the applicant, and the same amount to be paid to
G. by M.
- On 4 October 2004 the Court of Appeal quashed this
judgment and remitted the case for a fresh consideration. It found,
in particular, that such category of cases as the instant one should
have been examined by a panel of judges whereas the impugned judgment
had been rendered by a single judge.
- On
26 September 2005 the District Court allowed the applicant’s
claim, invalidated the contracts in question and awarded UAH 4,000
to be paid to M. by the applicant, and the same amount to be paid to
G. by M.
- On
6 October 2005 G. lodged an appeal against this judgment.
- On
12 January 2006 the case-file was sent to the Court of Appeal.
- On 3 April 2006 the Court of Appeal revealed a number
of procedural shortcomings of the inferior court, namely the failure
to comply with its instructions as to the examination by a panel of
judges (see paragraph 20 above), to follow instructions of the
Supreme Court of Ukraine given in its decision of 12 November 2003
(see paragraph 18 above), and to summon the defendants in a
proper way. Accordingly, it quashed the judgment of 26 September
2005 and remitted the case for a fresh consideration. The applicant
appealed in cassation.
- On
8 August 2006 the Supreme Court of Ukraine rejected the applicant’s
request for leave to appeal in cassation against the ruling of
3 April 2006.
- On
25 June 2007 the District Court found in part for the applicant. In
particular, it invalidated the purchase contract between P. and M.,
and ordered the latter to pay UAH 17,478 to the applicant. With
regard to the purchase contract concluded between M. and G., the
court found the latter to be a bona fide purchaser, and
therefore this contract was valid. The applicant appealed.
- On
8 November 2007 the Court of Appeal quashed this judgment in the part
related to the compensation owed to the applicant by M., and rejected
this claim. It upheld the remainder of the lower court’s
findings.
- The
applicant appealed in cassation and the proceedings are still pending
before the Supreme Court of Ukraine.
- Meanwhile,
on 3 December 2007 the District Court lifted the attachment order of
1 November 1999 (see paragraph 7 above). On 14 April 2008 the
Court of Appeal upheld this decision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of 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
Court notes that the proceedings at issue began on 6 October 1999 and
are still pending. They have thus lasted eight years and eight months
for three levels of jurisdiction.
A. Admissibility
- The parties did not submit any observations in respect
of the admissibility of this complaint.
- The
Court notes that this 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
Government contended that the applicant and the defendants had
contributed to the length of proceedings and that the State could not
be held liable for their behaviour. In particular, they averred that
by requesting to adjourn the hearing on several occasions, constantly
modifying her submissions, challenging judges, appealing against
courts’ decisions, etc., the applicant herself caused certain
delays to the proceedings. Further they pointed out that the case was
complex and that the judicial authorities had acted with due
diligence.
- 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, 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 case
concerned the rescission of a purchase contract concluded by the
applicant’s sister who had been declared incapacitated and
required the taking of expert evidence. However, the Court notes that
by November 2001 all necessary pieces of expert evidence were taken
and therefore the alleged complexity on points of facts could in no
way prolong the proceedings up to the present day. By the same token
the Court is not convinced that the present case was particularly
complicated on points of law.
- The
Court further recalls that, although a party to civil proceedings
cannot be blamed for using the avenues available to him under
domestic law in order to protect his interests, he must accept that
such actions necessarily prolong the proceedings concerned (see
Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5
April 2001). The Court agrees with the Government that the applicant
has contributed, to certain extent, to the length of the proceedings
by contesting the judgments in her case before the higher courts.
Nevertheless, she cannot be held primarily responsible for the
overall length of the proceedings in the instant case.
- The
Court observes that, although the national courts examined the case
with a more or less reasonable expediency, the case was thrice
remitted for a fresh consideration (paragraphs 18, 20 and 24
above). Therefore, it considers that the delay in the proceedings was
mainly caused by the repeated re-examination of the case. Although
the Court is not in a position to analyse the quality of the case-law
of the domestic courts, it observes that, since remittal is usually
ordered because of errors committed by lower courts, the repetition
of such orders within one set of proceedings discloses a serious
deficiency in the judicial system (Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
Moreover, 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-...).
- In the present case, the first instance court failed,
amongst other, to comply with the higher courts’ instructions.
For instance, one of the reasons for reversal of the judgment of
26 September 2005 was the first instance court’s disregard
of the Supreme Court’s instructions given in its decision of
12 November 2003. Another flaw was a repeated failure to examine
the case by a panel of judges (see paragraph 24). Consequently
the reversal of the judgment of 26 September 2005 led to one
more round of the proceedings which are still pending.
- In
sum, having regard to the circumstances of the instant case as a
whole, the Court concludes that there was unreasonable delay in
disposing of the applicant’s case.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
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 EUR 10,000 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 1,600
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 remainder of 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 1,600 (one
thousand and six hundred euros) 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, plus any tax that may
be chargeable;
(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 3 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
