FIFTH SECTION

CASE OF SUBOT v. UKRAINE

(Application no. 38753/06)

JUDGMENT

STRASBOURG

21 December 2010

This judgment is final but it may be subject to editorial revision.

In the case of Subot 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. 38753/06) 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, Mr Yevgen Ivanovych Subot (“the applicant”), on 14 September 2006.
2.  The applicant was represented by Mr V. Torosh, a lawyer practising in Rivne. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  On 16 March 2010 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the court proceedings in the applicant's case 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 1941 and lives in Rivne.
5.  In July 1997 Mr Y. (a private individual) lodged a civil claim against the applicant in a dispute over a house and a plot of land. The applicant lodged a counter-claim against Mr Y., some other private individuals and the local authorities seeking invalidation of several contracts of gift of parts of the house at issue and declaration of his title to premises he had built in that house.
6.  On 3 July 1998 the Rivne Court delivered a judgment in the case. On 30 July 1998 it renewed the applicant's procedural time-limits for lodging his appeal in cassation against the above judgment and on 2 November 1998 the Rivne Regional Court of Appeal quashed that judgment having remitted the case for fresh consideration.
7.  On 1 December 2005 the Rivne Court rejected the claim of Mr Y. as unsubstantiated, allowed the applicant's counter-claim to the extent that he requested invalidation of the contracts of gift and rejected, as unsubstantiated, his claim concerning declaration of title to the aforementioned premises.
8.  On 13 April 2006 the Rivne Court of Appeal partly amended the above judgment having declared the applicant's title to part of the household and the plot of land.
9.  On 6 May 2006 and 23 October 2008 respectively, the Supreme Court rejected, as unsubstantiated, the requests of the applicant and the local prosecutor (the latter acting in the applicant's interests) for leave to appeal in cassation.
10.  In the course of the proceedings the applicant twice amended or specified his claim; five hearings were adjourned upon his or his representative's requests or due to his or his representative's failure to appear; nine hearings were adjourned due to both parties' failure to appear. The above delays on the applicant's part protracted the proceedings to approximately one and a half years. Twenty three further hearings were adjourned due to the other party's and third parties' failure to appear or upon their requests and because of the absence or illness of a judge; fifteen hearings were adjourned for unspecified reasons.
11.  Subsequently the applicant unsuccessfully sought review of his case in the light of the newly-discovered circumstances.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12.  The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the court proceedings had not been reasonable. The Court considers that the complaint falls to be examined solely under Article 6 § 1, which reads, in so far as relevant, 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 Government contested that argument. In particular, they stated that the proceedings ended on 6 May 2006.
14.  The Court notes that the period to be taken into consideration began on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 23 October 2008, - and not on 6 May 2006 as suggested by the Government, - as the applicant's civil rights were finally determined when the Supreme Court refused to grant leave to the appeal in cassation lodged by the local prosecutor in the applicant's interests. The proceedings thus lasted for about eleven years and one month and involved the courts of three levels of jurisdiction.
A.  Admissibility
15.  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
16.  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).
17.  Turning to the circumstances of the case, the Court notes that the complexity of the case and the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraphs 6 and 10 above), cannot explain their overall duration. On the other hand, it finds that the major delays were caused by the lengthy examination of the case by the Rivne Court (see paragraphs 6-7 above) and by the Supreme Court (see paragraphs 8-9 above), as well as by the repeated adjournments of the hearings and recesses (see paragraph 10 above). It concludes, therefore, that the main responsibility for the lengthy duration of the proceedings rests with the State.
18.  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, among many other authorities, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006).
19.  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.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
20.  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
21.  The applicant claimed 7,000 Ukrainian hryvnias (UAH) in respect of pecuniary damage and “no less than 2,000-3,000 euros” (EUR) for non-pecuniary damage. Alternatively, he stated that his pecuniary and non-pecuniary damage amounted in total to “EUR 6,000-7,000”.
22.  The Government contested these claims.
23.  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 him EUR 3,000 under this head.
B.  Costs and expenses
24.  The applicant claimed UAH 11,000 and “UAH 2,000-3,000” (but “no less than EUR 300-350”) respectively, for legal assistance before the domestic courts and before the Court. He provided a receipt for UAH 600 paid to his representative before the Court. The applicant also claimed correspondence expenses incurred before the domestic courts and before the Court and translation expenses before the Court. He provided receipts for UAH 1,044.21 representing translation and correspondence expenses incurred by him in the proceedings before the Court.
25.  The Government contested the claim for legal costs and did not comment on the claim for correspondence and translation expenses.
26.  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 above criteria, the Court awards the applicant EUR 160 for legal costs, translation and correspondence expenses incurred by him in the proceedings before it.
C.  Default interest
27.  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 under Article 6 § 1 of the Convention admissible;

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

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage and EUR 160 (one hundred sixty euros) in respect of costs and expenses, plus any tax that may be chargeable, 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;

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