FIFTH SECTION

CASE OF KUTSENKO v. UKRAINE (No. 2)

(Application no. 2414/06)

JUDGMENT

STRASBOURG

3 February 2011

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 Kutsenko v. Ukraine (no. 2),
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mark Villiger, President,
	Karel Jungwiert,
	Isabelle Berro-Lefèvre, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 11 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 2414/06) 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, Mrs Tamara Ananyevna Kutsenko (“the applicant”), on 21 September 2004.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3.  On 10 February 2010 the President of the Fifth Section 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 1960. She died in June 2008. Her widower, Mr Kutsenko Oleh Mykolayovych, submitted that he wished to pursue the application.
5.  On 14 June 2000 the applicant lodged a claim with the Bahliyskyy District Court of Dniprodzerzhynsk (“the Bahliyskyy Court”) against the State Bailiffs’ Service. She sought compensation for pecuniary and non‑pecuniary damage allegedly caused by lengthy non-enforcement of two judgments given in her favour against a State enterprise. The debtor State enterprise participated in the proceedings as a third party.
6.  On 10 July 2001 the Bahliyskyy Court found no fault on the part of the Bailiffs and rejected the applicant’s claims.
7.  On 26 November 2001 the Dnipropetrovsk Regional Court of Appeal quashed the judgment of 10 July 2001 because of the failure of the first‑instance court to assess all the circumstances of the case and to give reasons for its decision and remitted the case for fresh examination.
8.  On 25 September 2003 the Bahliyskyy Court rejected the applicant’s claims. It noted that the judgments of 15 March 2000 and 25 February 2001 had been enforced in full on 6 July 2000 and 5 April 2002, respectively, and found no fault on the part of the Bailiffs for the alleged lengthy enforcement of the judgments.
9.  On 30 June 2004 the Dnipropetrovsk Regional Court of Appeal rejected the applicant’s appeal which she had to re-submit on two occasions in order to comply with procedural requirements and upheld the judgment of 25 September 2003.
10.  On 26 July 2004 the applicant appealed in cassation.
11.  On 29 May 2007 the Crimea Court of Appeal, acting as a court of cassation, found no grounds to review the applicant’s case in cassation.
12.  In the course of the proceedings before the first-instance court the applicant supplemented her claims on four occasions. Six times the proceedings were adjourned on the applicant’s request or because of her or her representative’s failure to appear which in total caused a delay of about six months. Sixteen times the proceedings were adjourned because of other participants’ (respondent, third party, experts) failure to appear or on their requests and on two occasions because of the absence of the judge which in total caused a delay of one year and five months.
THE LAW
I.  AS TO THE LOCUS STANDI OF MR KUTSENKO
13.  The applicant’s widower, Mr Kutsenko, expressed the wish to pursue the application following the applicant’s death. He submitted that he was the applicant’s heir.
14.  The Government submitted that Mr Kutsenko did not present any documents to prove that he was the applicant’s heir. Mr Kutsenko maintained that he was the applicant’s heir.
15.  The Court recalls that in a number of cases in which applicants died in the course of the proceedings, the Court has taken into account the statements of their heirs or of close family members expressing the wish to pursue the proceedings before the Court. This is particularly the case concerning applications which were introduced by applicants themselves and only continued by their widows after the applicants’ death (see, for example, Stojkovic v. “the former Yugoslav Republic of Macedonia”, no. 14818/02, §§25-26, 8 November 2007; and Ivanovski and Others v. “the former Yugoslav Republic of Macedonia”, no. 34188/03, §§ 15 and 18, 26 November 2009).
16.  The Court therefore finds that the applicant’s widower has standing to pursue the application. It will therefore continue dealing with the case at request of Mr Kutsenko. However, reference will still be made to the applicant throughout the ensuing text.
II.  THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
17.  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 ...”
18.  The Government contested that argument.
19.  The period to be taken into consideration began on 14 June 2000 and ended on 29 May 2007. It thus lasted six years, eleven months and fifteen days for three levels of jurisdiction.
A.  Admissibility
20.  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
21.  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).
22.  Turning to the facts of the present case, the Court notes that the case was not that complex to justify the overall length of the proceedings of about six years and eleven months. While it is true that the applicant caused some delays in the proceedings, substantial delays were caused by other participants in the proceedings all of which represented the State or the State-owned entity (see paragraphs 6 and 13 above). In this connection the Court notes that no appropriate steps were taken by the domestic authorities to ensure their compliance with the procedural obligation of attending the court hearings (see Golovko v. Ukraine, no. 39161/02, § 62, 1 February 2007). The Court further observes that the applicant’s appeal in cassation was pending examination for two years and ten months without any acceptable justification for this (see paragraphs 11 and 12 above). The Court therefore concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.
23.  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; Voishchev v. Ukraine, no. 21263/04, §§ 25-37, 19 February 2009; and Buryak v. Ukraine, no. 1866/04, §§ 21-22, 19 February 2009).
24.  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.
III.  OTHER COMPLAINTS
25.  The applicant also complained under Articles 1, 6, 13 and 34 of the Convention and Article 1 of Protocol No. 1 about the outcome of the proceedings and that the Bailiffs had failed to enforce in due time the judgments against the State enterprise. The applicant further complained of unfairness of the cassation proceedings and alleged lack of access to a court on account of the ruling given on 29 May 2007.
26.  In the light of the materials in its possession, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
27.  It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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
29.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
30.  The Government contested the claim.
31.  The Court considers that the applicant must have sustained non‑pecuniary damage on account of the excessive length of the civil proceedings in her case. Ruling on an equitable basis, it awards EUR 1,200 under this head to Mr Kutsenko.
B.  Costs en expenses
32.  The applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award under this head.
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 under Article 6 § 1 of the Convention concerning the 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 Mr Kutsenko, within three months, EUR 1,200 (one thousand two hundred euros) in respect of non‑pecuniary damage, 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 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 3 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mark Villiger	Deputy Registrar	President