FIFTH SECTION

CASE OF KRAT v. UKRAINE

(Application no. 30972/07)

JUDGMENT

STRASBOURG

21 December 2010

This judgment is final but it may be subject to editorial revision.	
In the case of Krat v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Rait Maruste, President,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 30 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 30972/07) 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 Ganna Gnativna Krat (“the applicant”), on 26 May 2007.
2.  The applicant was represented by Mr V. Krat, a lawyer practising in Lutsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  On 5 January 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
4.  The applicant was born in 1928 and lives in the Rivne Region.
5.  On 28 March 2001 she lodged a claim with the Mlyniv Court against a collective enterprise N. and the Mlyniv State Administration seeking recovery of her share in N. According to applicant, the share was worth UAH 29,767 (EUR 2,680) on 15 June 2009.
6.  On 10 April 2003 that court scheduled the first hearing for 6 May 2003, and then the next one for 21 January 2005.
7.  On 28 January 2005 the court refused to examine the applicant's complaint owing to her repeated failure to appear at the hearings. On 14 November 2005 the applicant appealed against the refusal.
8.  On 21 March 2006 the Rivne Regional Court of Appeal (“Court of Appeal”) having found no indication that the applicant had been informed of the hearings quashed the decision of 28 January 2005 and remitted the case to the first instance court.
9.  On 1 September 2006 the Mlyniv Court dismissed the applicant's claim as unsubstantiated. On 2 October and 12 December 2006 the applicant lodged respectively an appeal and a rectified appeal.
10.  On 25 January 2007 the Court of Appeal upheld the judgment of 1 September 2006. This decision was not appealed against and became final.
11.  According to the Government, out of the nine court hearings scheduled in the course of the proceedings (six in the first instance court, three in the second instance court), three were adjourned following the respondents' failure or inability to appear, one each was adjourned due the presiding judge being on sick leave, both parties failure to appear and the applicant's failure to appear. Also during the proceedings, the applicant filed four procedural requests.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12.  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...”
13.  The period to be taken into consideration began on 28 March 2001 and ended on 25 January 2007. It thus lasted more than five years and nine months for two levels of jurisdiction.
A.  Admissibility
14.  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
15.  The Government maintained that the applicant and the defendant were responsible for the protracted length of the whole proceedings.
16.  The applicant disagreed.
17.  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).
18.  Turning to the facts of the present case, the Court notes that the issue at stake determined the applicant's property rights and was, therefore, of some importance for her, but on the other hand, was not complex by any account.
19.  With regard to the applicant's conduct, the Court finds no substantial delays that are attributable to her (see paragraph 11 above). In respect of her procedural requests and appeals, the Court notes that she merely exercised her procedural rights and that her procedural steps did not considerably influence the overall length of the proceedings.
20.  The Court observes that the delays in the proceedings were mostly caused by the first instance court's inaction: the first hearing was held two years after the claim had been lodged and the court then needed more than one year and eight months to schedule and hold the second hearing.
21.  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).
22.  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 of the Convention.
II.  OTHER COMPLAINTS
23.  The applicant further complained that the first instance court had failed to properly assess the evidence before them. She also complained that the Court of Appeal left without consideration her arguments in support of her appeal. She finally complained of a violation of her property rights as a consequence of the protracted length of the proceedings.
24.  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.
25.  It follows that these complaints must be declared manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
26.  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
27.  The applicant claimed UAH 59,147 in respect of pecuniary and EUR 20,000 in respect of non-pecuniary damage.
28.  The Government contested these claims.
29.  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, 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
30.  The applicant also claimed EUR 2,000 in legal fees incurred before the Court.
31.  The Government contested the claim.
32.  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 further observes that normally the applicants are not called on to be legally represented in the cases like the present one and therefore their legal expenses are not reimbursed. In the instant case, the applicant furnished a contract concluded with a lawyer containing no detailed account of the services to be rendered. The applicant did not provide any document evidencing payment in compliance with the contract either. Yet, the lawyer concerned filed observations and two inquiries to the Court on the applicant's behalf. Regard being had to the Court's case-law and the information in its possession, the Court awards the amount of EUR 100 for costs and expenses (see mutatis mutandis, Romanchenko v. Ukraine, no. 5596/03, § 38, 22 November 2005).
C.  Default interest
33.  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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

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

3.  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 six hundred euros) in respect of non-pecuniary damage and EUR 100 (one hundred 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 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste
	Deputy Registrar	President