FIFTH SECTION

CASE OF SHCHUROV v. UKRAINE

(Application no. 5050/07)

JUDGMENT

STRASBOURG

6 October 2011

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

In the case of Shchurov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 13 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 5050/07) 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, Mr Mykola Yevgenovych Shchurov (“the applicant”), on 4 January 2007.
2.  The applicant was represented by Ms N. Savchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
3.  On 25 August 2010 the President of the Fifth Section decided to give notice of the application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1952 and lives in Kyiv.
5.  On 1 December 1993 he lodged a claim with the domestic courts against four private individuals in a dispute over inheritance.
6.  On 6 November 2001 the Svyatoshynskyy District Court of Kyiv (“the District Court”) rejected the claim as unsubstantiated.
7.  On 14 January 2002, following the applicant’s failure to lodge his appeal against the above judgment in accordance with the procedural requirements, the District Court returned it unexamined.
8.  On 21 August 2002, following the applicant’s failure to lodge his appeal against the ruling of 14 January 2002 in accordance with the procedural requirements, the District Court returned it unexamined.
9.  On 13 September 2002, following the applicant’s failure to lodge his appeal against the ruling of 21 August 2002 in accordance with the procedural requirements, the District Court returned it unexamined. On 30 March 2005 and 14 July 2006 respectively, the Kyiv City Court of Appeal and the Supreme Court upheld the ruling of 13 September 2002.
10.  According to the Government, in the course of the proceedings the applicant amended his claim on two occasions. The courts adjourned twelve hearings following the applicant’s requests or due to his and other parties’ failure to appear. The applicant stated that he had not been duly informed of one of the hearings. The above delays on the applicant’s part protracted the proceedings by approximately ten months. Some thirty five hearings were further adjourned following other parties’ requests, their failure to appear, due to the absence of a judge or for unspecified reasons.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
11.  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 ...”
12.  The Government contested that argument stating, in particular, that the applicant had contributed to the length of the proceedings by having failed to attend some of the hearings and by having lodged several procedural requests.
13.  The period to be taken into consideration began only 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 14 July 2006. The proceedings thus lasted eight years and ten months before three levels of jurisdiction.
A.  Admissibility
14.  The Court notes that the 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 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).
16.  The Court considers that the complexity of the case and the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraphs 7-10 above), cannot explain their overall length. On the other hand, the Court finds that the protraction of the proceedings was mainly caused by the lengthy consideration of the case by the District Court (see paragraphs 5-6) and by the repeated adjournments of the hearings (see paragraph 10 above). It concludes, therefore, that the main responsibility for the lengthy duration of the proceedings rests with the State.
17.  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; Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006).
18.  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.  REMAININIG COMPLAINTS
19.  The applicant complained under Article 6 § 1 of the Convention about the outcome and unfairness of the proceedings, partiality of judges and lack of access to a court.
20.  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.
21.  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
22.  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, costs and expenses
23.  The applicant claimed 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
24.  The Government contested the claim.
25.  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, it awards the applicant EUR 1,600 in respect of non-pecuniary damage.
B.  Default interest
26.  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;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 1,600 (one thousand six 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič	Deputy Registrar	President