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FIFTH
SECTION
CASE OF YELENA IVANOVA v. UKRAINE
(Application
no. 4640/04)
JUDGMENT
STRASBOURG
18
February 2010
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 Yelena Ivanova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4640/04) 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, Ms Yelena Nikolayevna Ivanova (“the
applicant”), on 13 January 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
10 November 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in the town of Gorlovka,
Ukraine.
1. Background to the case
- From
30 January 1991 to 12 June 1998 the applicant was married to S.D.
During this period they lived in an apartment situated in a private
house owned by S.D. (hereafter “the apartment”).
- On
23 May 1998 S.D. made a written undertaking to pay a debt to K.A., a
third person, by 30 May 1998. On the latter date S.D. made another
written undertaking to pay a debt to S.N., a third person, by 30 June
1998.
- On
18 June 1998 S.D. made a gift of his apartment to the applicant which
was certified by a notary officer.
- Subsequently
K.A. and S.N. sued S.D. By two separate judgments of 7 October
1998 the Tsentralno-Miskyy District Court of Gorlovka (“the
District Court”) ordered S.D. to pay the claimed debts. In
consequence, enforcement proceedings were instituted.
2. Proceedings on rescission of the gift
- On
4 January 1999 S.D. instituted proceedings in the District Court
against the applicant, asking the court to declare the gift of the
apartment of 18 June 1998 void.
- On
7 February 2000 the District Court ordered the attachment of the
apartment upon S.D.’s request.
- On
1 March 2000 the District Court declared the gift of 18 June 1998
null and void. On 29 May 2000 the Donetsk Regional Court (after
June 2001 the Donetsk Regional Court of Appeal - hereafter “the
Court of Appeal”) upheld this judgment.
- On
2 April 2001 the District Court lifted, upon S.D.’s request,
the attachment order of 7 February 2000 as the judgment of
1 March 2000 had already become final. The applicant
appealed.
- On
9 July 2001 the Court of Appeal quashed the decision of 2 April 2001
and remitted the case for fresh consideration.
- On
5 November 2001 the District Court lifted the attachment order of
7 February 2000.
- On
24 March 2003 the Supreme Court of Ukraine, acting under the new
cassation procedure, dismissed the applicant’s appeal against
the decisions of 1 March and 29 May 2000.
3. Proceedings on the property right over the apartment
- On
3 August 2000 the applicant instituted proceedings in the District
Court against S.D., K.A. and S.N., claiming ownership of a part of
the apartment.
- Meanwhile, in the course of the proceedings on
enforcement of the judgments of 7 October 1998, two public
auctions managed by the Ukrspetsjust State Company and aiming to sell
the disputed apartment were held but nobody expressed the wish to buy
it. On 28 May 2001, following these unsuccessful auctions, the
State Bailiffs’ Service decided to transfer the property right
over this apartment to K.A. and S.N. in payment of the debts awarded
to them. On 12 June 2001 this transfer was certified by the relevant
notary office.
- On 30 July 2001 the District Court suspended the
proceedings pending outcome of the proceedings against the Bailiffs’
Service (see paragraph 28 below). The next hearing was held on 14
October 2002.
- On 24 February 2004 the court found against the
applicant. On 14 October 2004 the Court of Appeal quashed this
judgment and remitted the case to the District Court for fresh
consideration.
- On 16 September 2004 the local
prosecutor entered the proceedings on behalf of the applicant.
- On 25 October 2004 the applicant lodged an additional
claim challenging the decision of 28 May 2001 and the transaction of
12 June 2001.
- In April 2005 the applicant amended her claims,
challenging the property right of K.A. and S.N. over the disputed
apartment.
- On 12 May 2005 the District Court ordered the
attachment of the half of the house in which the disputed apartment
was situated.
- On 17 August 2005 the District Court rejected the
applicant’s claims. On 17 March 2006 the Court of Appeal
quashed this judgment and remitted the case to the District Court for
fresh consideration.
- Subsequently, in the course of the proceedings before
the District Court, the State Bailiffs’ Service and the
Ukrspetsjust State Company entered the proceedings as third parties.
- In April 2007 the applicant introduced an additional
claim challenging the contract concluded between third persons on the
sale of another part of the house in which the apartment was
situated.
- The proceedings are still pending before the District
Court.
4. Other proceedings
- On an unspecified date the
applicant instituted proceedings in the District Court against the
State Bailiffs’ Service. She challenged its actions aiming to
sell the disputed apartment. She also asked the District Court
to annul the decision of 28 May 2001 and the transaction of 12 June
2001. On 22 February 2002 the court discontinued the proceedings
as the applicant was not a party to the impugned enforcement
proceedings. On 16 May 2002 the Court of Appeal rejected the
applicant’s appeal.
- On an unspecified date the
applicant instituted proceedings in the District Court against the
local department of justice and the notary’s office, which had
certified the transfer of the property right from S.D. to K.A. and
S.N., seeking to annul the decision of 28 May 2001 and the
transaction of 12 June 2001, respectively. On 16 August
2002 the court issued a ruling about the shortcomings of the
applicant’s claim and gave her the possibility to correct these
shortcomings. The applicant did not provide any further information.
- The applicant also tried to
institute criminal proceedings against the State Bailiffs, K.A. and
S.N., but to no avail.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the excessive length of the proceedings
instituted in August 2000. The Court will consider her complaint
under Article 6 § 1 of the Convention. As
far as relevant, this Article 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 3 August 2000 and has
not yet ended. It has thus lasted nine years and six months for two
levels of jurisdiction.
A. Admissibility
- 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
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 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. OTHER ALLEGED VIOLATIONS OF
THE CONVENTION
- Without
invoking any Article of the Convention or Protocols thereto the
applicant complained about unfairness and outcome of the proceedings.
She further complained under Article 1 of Protocol No. 1 that she had
been deprived of her property. Lastly, she invoked Article 5 of
Protocol No. 7 to the Convention referring to the facts of the case.
- Having
considered the applicant’s submissions in the light of all the
material in its possession, the Court finds that, 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 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
applicant requested that the Court award her compensation in respect
of pecuniary and non-pecuniary damage. She left the matter to the
Court’s discretion.
- The
Government contested the applicant’s claim.
- 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, it awards the applicant
EUR 3,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no separate claim as to costs and expenses. Therefore,
the Court makes no award under this head.
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 proceedings instituted in August 2000 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 applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,200
(three thousand two hundred euros) plus any tax that may be
chargeable, 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;
(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 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
