FIFTH SECTION

CASE OF SHEPTITSKAYA AND SHEPTITSKIY v. UKRAINE

(Application no. 23747/05)

JUDGMENT

STRASBOURG

3 March 2011

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

In the case of Sheptitskaya 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 8 February 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 23747/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Ms Natalya Anatolyevna Sheptitskaya (“the first applicant”) and Mr Bohdan Valeriyevich Sheptiskiy (“the second applicant”), on 31 May 2005.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3.  On 24 November 2009 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 applicants were born in 1971 and 1997, respectively, and live in Kherson.
5.  On 8 November 2000 S., the first applicant’s former husband, lodged a claim with the Komsomolskyy District Court of Kherson (“the Komsomolskyy Court”) against the first applicant, challenging her right to use a flat.
6.  On 13 November 2000 the Komsomolskyy Court, hearing the case in the absence of the first applicant, allowed the claims of S. and found that the applicant had lost the right to use the disputed flat. The judgment became final.
7.  On 30 November 2000 the first applicant lodged with the Komsomolskyy Court a claim against S. and the Kherson Town Council challenging the right of S. to use the disputed flat. It was subsequently joined to the proceedings instituted against the applicant by S.
8.  On an unspecified date the prosecutor lodged with the Presidium of the Kherson Regional Court a protest seeking the annulment of the judgment of 13 November 2000, stating that the case had been heard in the absence of the first applicant who had not been notified of the date and time of the hearing.
9.  On 26 April 2001 the Presidium of the Kherson Regional Court allowed the protest, quashed the judgment of 13 November 2000 and remitted the case for a fresh consideration.
10.  At the hearings on 22 March 2001, 28 February 2002 and 1 April 2004 the first applicant, acting also on behalf of the second applicant, her minor son, lodged additional claims against S. and a number of private persons for compensation for damage based on the same circumstances. She also sought the annulment of the contracts by which the disputed flat had been transferred to those persons.
11.  On 16 October 2001 the Komsomolskyy Court allowed the applicants’ claims in full. It found that S. had lost the right to use the disputed flat and acknowledged the applicants’ right to use it. It obliged the Kherson Town Council to conclude a residential lease agreement with the applicants.
12.  On 5 February 2003 the Kherson Court of Appeal, on an appeal by S. which he had had to resubmit on several occasions because of his failure to comply with procedural requirements, quashed the judgment of 16 October 2001 and remitted the case for a fresh consideration.
13.  On 20 July 2004 the Komsomolskyy Court rejected the applicants’ claims. It found that the applicants had voluntarily left the disputed flat in 1997 and subsequently resided elsewhere. The flat was privatised by the first applicant’s former husband. The applicants therefore lost their right to use the disputed flat.
14.  On 12 August 2004 the applicants appealed against the judgment of 20 July 2004.
15.  On 8 December 2004 the Kherson Regional Court of Appeal dismissed the appeal and upheld the judgment of 20 July 2004.
16.  On 11 February 2005 the applicants lodged an appeal in cassation and a request for extension of the relevant time-limit. On 1 March 2005 the Komsomolskyy Court granted the applicants the extension requested.
17.  On 12 May 2007 the Supreme Court transferred the case for examination to the Kirovohrad Regional Court of Appeal.
18.  On 2 October 2007 the Kirovohrad Regional Court of Appeal, acting as a court of cassation, quashed the ruling of 8 December 2004 and remitted the case for re-consideration by the Kherson Regional Court of Appeal, having found that the latter had failed to notify the applicants about the date and time of its hearings.
19.  Following a new consideration on appeal and an examination in cassation, on 11 December 2007 and 9 April 2008, respectively, the Kherson Regional Court of Appeal and the Supreme Court upheld the judgment of 20 July 2004.
20.  In the course of the proceedings there were forty-one hearings held, of which six were adjourned because of the first applicant’s failure to attend and eighteen because the other parties had failed to attend the hearings.
THE LAW
I.  THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
21.  The applicants 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, 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 ...”
A.  Admissibility
22.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
23.  The applicants complained that the length of the proceedings had been excessive.
24.  The Government submitted that the delays in the examination of the case had been caused by the complexity of the matter and by the behaviour of the parties, namely because of the parties’ repeated failure to appear before the courts and due to the appeals they had lodged with the higher courts. The Government admitted that there had been delays, resulting from the high work load of the Supreme Court. The case was however promptly and effectively dealt with due to the introduction of changes to the Judiciary Act allowing civil cases to be examined in cassation by courts of appeal.
25.  The Court notes that the period to be taken into consideration began on 8 November 2000 and ended on 9 April 2008. It thus lasted about seven years and four months for three levels of jurisdiction, excluding the period between 13 and 30 November 2000 when no proceedings were pending in the case (see Markin v. Russia (dec.), no. 59502/00, 16 September 2004, and Pavlyulynets v. Ukraine, no. 70767/01, §§ 41-42, 6 September 2005).
26.  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).
27.  The Court observes that the case concerned a dispute as to the right to use a flat which had arisen mainly between the applicants and the first applicant’s former husband. It also involved the determination of the rights of their minor child, the second applicant, and was eventually complicated by the additional claims lodged by the applicants (see paragraph 10 above). The Court also notes that the first applicant somewhat contributed to the length of proceedings, in particular by failing to attend six court hearings.
28.  The Court however considers that the complexity of the case and the first applicant’s behaviour alone cannot justify the overall length of the proceedings of seven years and four months. It notes that the delays in the proceedings were mainly caused by repeated remittals of the case (see paragraphs 9, 12 and 18 above). The Court also notes that the applicants’ appeal in cassation had been pending before the courts for two years and seven months without any acceptable justification for such a delay (see paragraphs 16-17 above). It further observes that the proceedings were adjourned on a substantial number of occasions because of the respondent’s and third parties’ failure to appear and it was not suggested in the case that the domestic courts had applied any measures to ensure the parties’ appropriate behaviour (see paragraph 20 above). The Court therefore finds that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.
29.  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, § 49-53, 6 September 2005; and Vashchenko v. Ukraine, no. 26864/03, § 50, 26 June 2008).
30.  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 COMPLAINTS
31.  The applicants complained of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the outcome and unfairness of the proceedings.
32.  In the light of the materials in its possession, the Court finds that the applicants’ complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
33.  It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
34.  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
35.  The applicants claimed 20,000 euros (EUR) in respect of pecuniary and EUR 4,000 in respect of non-pecuniary damage.
36.  The Government contested these claims.
37.  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 applicants jointly EUR 1,200 in respect of non‑pecuniary damage.
B.  Costs and expenses
38.  The applicants also claimed EUR 130 for the costs and expenses incurred before the domestic courts and before the Court.
39.  The Government submitted that the applicants’ claims were supported by copies of relevant documents only in part. They contended that the remainder of the claims were not related to the examination of the case by the Court.
40.  The Court notes that the applicants provided relevant supporting documents in respect of the amount of EUR 77 which they had spent for corresponding with the Court and for translation of relevant documents. It therefore awards the applicants jointly this amount for costs and expenses.
C.  Default interest
41.  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 applicants’ complaint under Article 6 § 1 of the Convention of 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 applicants jointly, within three months, EUR 1,200 (one thousand two hundred euros) in respect of non‑pecuniary damage and EUR 77 (seventy seven euros) for 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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 3 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Deputy Registrar	President