FIFTH SECTION

CASE OF SHEPELEVA v. UKRAINE

(Application no. 14403/04)

JUDGMENT

STRASBOURG

15 October 2009

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 ,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Peer Lorenzen, President,
	Renate Jaeger,
	Karel Jungwiert,
	Rait Maruste,
	Isabelle Berro-Lefèvre,
	Mirjana Lazarova Trajkovska, judges,
	Mykhaylo Buromenskiy, ad hoc judge,
and ClaudiaWesterdiekSection Registrar,
Having deliberated in private on 22 September 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 14403/04) 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 Yelena Valentinovna Shepeleva (“the applicant”), on 20 March 2004.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  On 14 January 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
4.  The applicant was born in 1968 and lives in the city of Kharkiv, Ukraine.
5. In 1996 her apartment was sold to Mrs T. In October 1998 Mr P., the applicant's ex-husband, acting on behalf of Mrs T., sold this apartment to Mr L. In March 2003 Mr L. sold back the apartment to Mr P. and his wife, Mrs P.N. The applicant stated that her signature on the initial sales contract with Mrs T. had been falsified.
A.  First set of civil proceedings
6.  On 1 February 1999 the applicant instituted proceedings in the Dzerzhynsky District Court of Kharkiv (“the Dzerzhynsky Court”) against Mr P. and Mrs T. for a declaration that the sale of the apartment to Mrs T. and all further sales were null and void.
7.  On 1 February 1999 the Dzerzhynsky Court attached the disputed apartment, having banned in particular, its disposal.
8.  The first hearing was scheduled for 30 October 2000.
9.  Between 30 October 2000 and 15 October 2001 the first-instance court scheduled four hearings. Two were adjourned since the parties failed to appear and the other two because the judge was involved in other proceedings.
10.  On 15 October 2001 the Dzerzhynsky Court declined to consider the applicant's claim because the parties failed to appear.
11.  The applicant lodged an appeal against that decision.
12.  On 18 July 2002 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) remitted the case for examination on the merits to the first -instance court.
13.  According to the applicant, on 18 December 2001 the Dzerzhynsky Court lifted the sales ban imposed under the ruling of 1 February 1999. 
14.  In the period from 18 July 2002 till 7 April 2005 the Dzerzhynsky Court scheduled nineteen hearings. Five were adjourned because the judge was involved in other proceedings and because he was ill. A further six were adjourned owing to the absence of one or more of the parties.
15.  On 7 April 2005 the Dzerzhynsky Court granted the applicant's claim.
16.  On 18 January 2006 the Court of Appeal quashed that decision and remitted the case for fresh consideration.
17.  The case-file was returned to the Dzerzhynsky Court in January 2006.
18.  On 26 July 2006 the case was transferred to another judge.
19.  On 6 February 2007 hearings were suspended because of the death of Mr P. On 21 March 2007 the Kharkiv Regional Court of Appeal dismissed the applicant's appeal against the decision of 6 February 2007. The proceedings resumed in August 2007.
20.  On 14 December 2007 the applicant appealed against the ruling of 18 December 2001. On 21 May 2008 the Kharkiv Regional Court of Appeal left her appeal without consideration. On 9 July 2008 the Supreme Court upheld the ruling of the court of appeal.
21.  On 10 October 2008 the Dzerzhynsky Court granted the applicant's claims in part. The judgment was not appealed and became final.
22.   Between 19 January 2006 and 18 January 2008 the Dzerzhynsky Court scheduled eleven hearings. Seven were adjourned because the judge was on holiday or involved in other proceedings. A further three were adjourned because the defendants failed to appear. The Government and the applicant did not provide the Court with information about the hearings scheduled after 18 January 2008.
B.  Second set of civil proceedings
23.  On 15 October 2001 Mr L. instituted proceedings seeking the applicant's eviction from the apartment in question.
24.  On 26 October 2001 the Dzerzhynsky Court ordered the applicant's eviction. On 1 October 2003 the Supreme Court rejected the applicant's cassation appeal. On 14 November 2003 the judgment was enforced and the applicant was evicted from the apartment.
C.  Criminal proceedings
25.  On 15 February 2002 police instituted an investigation into falsifying the applicant's signature. The investigation is still pending. 
26.  The applicant tried to institute criminal proceedings against Mrs P.N. However, her efforts were to no avail.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
27.  
Article 6 § 1

Article 13
“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.”
A.  Admissibility
28.  The Court notes that these 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
29. In their observations the Government contended that there had been no violation of Article 6 § 1 or Article 13 of the Convention.
30.  The applicant disagreed.
31.  The Court notes that the applicant instituted the civil proceedings at issue on 1 February 1999.  The period in question ended on 10 October 2008. It thus lasted over nine years and eight months for three levels of jurisdiction.
32.  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).
33he Court notes that the complexity of the case and the applicant's conduct alone cannot explain the overall length of the proceedings at issue in the present case. It considers that a number of delays (in particular, remittals of the case for fresh consideration, a lengthy period of procedural inactivity between 1 February 1999 and 30 October 2000 and the repeated adjournment of hearings because of the judge's involvement in other proceedings) are attributable to the Government.
34.  The Court has frequently found violations of Article 6 § 1 and Article 13 of the Convention in cases raising issues similar to the one in the present case (seefor example, Vashchenko v. Ukraine, no. 26864/03, §§ 55 and 59, 26 June 2008).
35.  Having examined all the material in its possession, 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.
36.  There has accordingly been a violation of Article 6 § 1 and Article 13 of the Convention.
II.  
37.  The applicant further complained that the length of the proceedings complained of had infringed her right to the peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1.
38.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
39.  However, having regard to its finding under Article 6 § 1 (see paragraph 33 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 1 of Protocol No. 1 (see , 19 February 1991, § 23, Series A no. 194-C).
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
40.  The applicant complained under Article 6 § 1 about outcome and unfairness of the first and second sets of the civil proceedings. She further complained about the length of the second set of civil proceedings. She also complained in reliance on Article 17 that the judges sitting in the domestic courts were not impartial and lacked independence. The applicant further complained under Article 8 § 1 about the unlawfulness of her eviction from the apartment. She also alleged under the same Article that she had been deprived of contact with her child and that her correspondence had been seized by unnamed persons. She complained under Article 6 § 1 and 13 of the Convention that the investigation into falsification of her signature was ineffective. She complained that her efforts to institute criminal proceedings against Mrs P.N. were to no avail. Lastly, she invoked Article 1 of the Convention without any further explanation.
41.  The Court has examined the remainder of the applicant's complaints and considers that, in the light of all the material in its possession and 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 or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
42.  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
43.  The applicant claimed 405,898.80 Ukrainian hryvnias (UAH) (approximately  (EUR and 17,850 United States dollars (USD) in respect of pecuniary damage and USD 50,000 in respect of non‑pecuniary damage.
44.  The Government contested these claims.
45.  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, ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 2,400 in respect of non-pecuniary damage.
B.  Costs and expenses
46.  The applicant, who was not represented before the Court, claimed UAH 13,916.80 (approximately EUR in respect of her transport expenses, court fees, expenses for postage, translation, photocopying, legal expenses and others. This amount included, in particular, UAH 9,000 in legal expenses; she failed to provide any document in support of this claim.
47.  The Government did not object to the applicant's claim for postal expenses. They left the question of expenses for translation services and photocopying to the Court's discretion and contested the remainder of her claims under this head.
48.  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. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 80 under this head.
C.  Default interest
49.  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
1.  Declares the complaints concerning the length of the first set of proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1 of the Convention;

5.  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 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 80 (eighty euros) in respect of costs and expenses, 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 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;

6.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 15 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President