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FIFTH
SECTION
CASE OF FEDOROVA v. UKRAINE
(Application
no. 1853/08)
JUDGMENT
STRASBOURG
12 May
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Fedorova 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 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 1853/08) 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 Svetlana Mikhaylovna Fedorova (“the applicant”),
on 22 December 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- 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
- The
applicant was born in 1945 and lives in Sevastopol.
- In
February 1996 the applicant, who was later joined by a certain B.,
instituted proceedings in the Gagarinskyy District Court of
Sevastopol (“the District Court”) against six individuals
seeking annulment of a sale contract and a deed of gift in respect of
a flat.
- On
21 October 1999 the District Court refused to examine the applicant’s
claims owing to her repeated failure to attend the hearings. On
12 January 2001 the Sevastopol Court of Appeal (“the Court
of Appeal”), upon the Sevastopol Prosecutor’s “protest”
of December 2000, quashed this decision and remitted the case to the
first instance court which, on 26 January 2004, rejected the
applicant’s claims as unsubstantiated. In its judgment, the
court enumerated the main arguments of the parties, analysed the
evidence obtained, made references to the substantial and procedural
laws and gave reasons for its conclusion.
- On
25 August 2004 the Court of Appeal upheld that judgment, having in
particular analysed the evidence obtained by the first-instance court
and having rebutted two of the applicant’s statements.
- On
21 September 2004 the applicant appealed in cassation. She was
subsequently twice invited to rectify her appeal to meet procedural
requirements. On 30 December 2004 the District Court allowed her
request to extend the time-limit for lodging the appeal in cassation.
On 3 August 2007 the Crimea Court of Appeal, acting as a cassation
court and having agreed with the lower courts’ findings,
rejected the applicant’s appeal in cassation as
unsubstantiated.
- According
to the Government, between 11 September 1997 and 3 August 2007,
two expert examinations were ordered and the applicant filed five
procedural requests. She also filed three appeals that did not meet
procedural requirements. Of the forty six hearings scheduled during
the same period of time, ten were adjourned at the applicant’s
request, nine were adjourned owing to the presiding judge’s
absence, six were adjourned due to one or more of the defendants’
or witness’s failure to attend, two were adjourned due to the
both parties’ failure to attend, and one was adjourned at
request of one or more defendants. Overall, due to the applicant’s
requests or her failure to attend, the proceedings were delayed for
about one year and nine moths, excluding the period between
21 October 1999 and 12 January 2001.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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, 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 ...”
- The
Government contested that argument.
- The
period to be taken into consideration began only on 11 September
1997, when the Convention entered into force with regard to Ukraine.
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 3 August 2007. It thus
lasted more than nine years and ten months for three levels of
jurisdiction.
A. Admissibility
- 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
- The
Government maintained that the proceedings had been complex on
account of the number of litigants and the need to order two expert
examinations. In their view, the parties had
been responsible for several delays and the applicant in
particular by filing procedural requests and appeals. There had been
no significant periods of inactivity attributable to the domestic
courts.
- The
applicant disagreed.
- 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, e.g., Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- As
regards the subject matter of the litigation, the Court finds that it
cannot be considered particularly complex.
- With
regard to the applicant’s conduct, the Court admits that there
were certain delays attributable to her (see paragraphs 8 and 9
above). However, it will not take into account the District Court’s
finding of 21 October 1999 and the subsequent period as that
decision was overturned by the Court of Appeal (see paragraph 6
above). Moreover, in respect of her procedural requests and appeals,
the Court notes that she merely exercised her procedural rights and
cannot be blamed for using the avenues available to her under the
domestic law in order to protect her interests (see, Silin
v. Ukraine, no. 23926/02, § 29, 13 July 2006). Thus,
without the delays attributable to the applicant, the length of the
proceedings would have been eight years and one month.
- The Court notes that the conduct
of the parties to the proceedings and the complexity of the case
cannot explain the overall length of the proceedings at issue. It
finds that the main delay in the proceedings took place during the
examination at the first-instance court that lasted, taking into
consideration the Court’s competence ratione
temporis, more than six years (see
paragraphs 5 and 6 above). Another substantial delay was
caused by the Supreme Court that reviewed the case for more than two
years and seven months, excluding a delay attributable to the
applicant.
- 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). Having examined all the
material submitted to it, it 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
- The
applicant further complained under Article 6 § 1 of the
Convention that the domestic courts had failed to give reasons for
their decisions on the merits of her claim.
- 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. It follows that this part of the
application must be declared inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- 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
- The
applicant also claimed 18,500,000 karbovanets (185 hryvnias (UAH))
and UAH 711 (overall EUR 72)
for the costs and expenses incurred before the domestic courts. She
accordingly submitted receipts for the court and lawyer fees and
postal expenses. The applicant further claimed UAH 158 (EUR 13)
for postal expenses incurred before the Court and submitted the
relevant receipts.
- The
Government contested the claim regarding the domestic proceedings,
but left the remainder of the claim to the Court’s discretion.
- 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 information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
as there is no indication that they were necessarily incurred that is
in order to prevent the violation or obtain redress therefore. On the
other hand, the Court considers it reasonable to award the sum of EUR
13 for the proceedings before the Court.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 1,600 (one thousand six hundred euros) in respect of
non pecuniary damage and EUR 13 (thirteen 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 12 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
