FIFTH SECTION

CASE OF MURDUGOVA v. UKRAINE

(Application no. 28325/04)

JUDGMENT

STRASBOURG

2 February 2012

This judgment is final but it may be subject to editorial revision.
In the case of Murdugova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mark Villiger, President,
	Karel Jungwiert,
	André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 10 January 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 28325/04) 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 Yevgeniya Ilyinichna Murdugova (“the applicant”), on 22 July 2004.
2.  On 7 February 2007 the applicant’s daughter, Mrs Liliya Aleksandrovna Sardaryan, who resides in Armenia, informed the Registry that the applicant had died on 12 January 2007 and expressed the wish to continue the proceedings before the Court on the applicant’s behalf. She was represented by Mr V. Yavorskyy, a lawyer practising in Kyiv, Ukraine.
3.  The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.
4.  On 3 April 2008 the President of the Fifth Section decided to give notice of the applicant’s complaint under Article 6 § 1 of the Convention about the excessive length of proceedings to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
5.  On 25 January 2010 the Court further invited the parties to submit additional observations as regards the applicant’s complaint under Article 6 § 1 of the Convention concerning fair hearing in the injunction proceedings. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1920 and lived in Kyiv, Ukraine, and in Yerevan, Armenia.
7.  From 1947 to 1966 the applicant was married to M. Mrs Sardaryan was born during the marriage. The applicant and M. divorced in 1966. On 11 August 1984 they remarried.
8.  On 12 January 2007 the applicant died and Mrs Sardaryan inherited her rights and obligations.
9.  On 2 April 2007 M. died and Mrs Sardaryan inherited his rights and obligations.
A.  Divorce proceedings
10.  On 22 November 1996 M. instituted divorce proceedings in the Moskovskiy District Court of Kyiv against the applicant.
11.  On 6 May 1997 M. amended his claims and requested a declaration that the marriage of 1984 was void. Subsequently he modified and withdrew his claims on several occasions.
12.  On 24 March 1998 the court declared the marriage void. The applicant appealed.
13.  On 29 April 1998 the Kyiv City Court (since 2001 the Kyiv City Court of Appeal) quashed this judgment on the ground that the lower court had failed to examine the initial claims of M. and to establish crucial facts, and remitted the case for fresh consideration.
14.  On 26 June 1998 the applicant submitted a counterclaim, seeking a divorce.
15.  On 27 July 1998 the Moskovskiy District Court granted the divorce petition in respect of M. and the applicant. M. appealed.
16.  On 9 September 1998 the Kyiv City Court quashed this judgment on the lower court’s failure to assess properly the evidence and remitted the case for fresh consideration.
17.  On several occasions the Kyiv City Court transferred the case from one trial court to another for further examination: in September 1998 to the Zaliznychniy District Court of Kyiv; in October 1999 to the Starokyivskiy District Court of Kyiv; and, eventually, on 20 January 2000 to the Kharkivskiy District Court of Kyiv (in 2001 this court was reorganised into the Dniprovskiy and Darnytskiy District Courts of Kyiv).
18.  On 4 July 2001 the court found for M. and declared the marriage with the applicant void. The applicant appealed.
19.  On 4 December 2001 the Kyiv City Court of Appeal quashed this judgment and remitted the case for fresh consideration to the Dniprovskiy District Court of Kyiv. It noted, inter alia, that although the trial court had examined the case in the applicant’s absence, it had failed to take into account her written pleadings, which were important for a fair examination. M. appealed in cassation against this decision but on 7 March 2002 the Supreme Court of Ukraine dismissed his appeal.
20.  On 26 April 2002 the Dniprovskiy District Court resumed the proceedings.
21.  On 23 May 2003 the court granted divorce to M. and the applicant. The hearing was held in M.’s absence. M. appealed.
22.  On 18 November 2003 the Kyiv City Court of Appeal quashed the judgment on the ground that the trial court had failed to examine whether the absence of M. was for good reasons or not and remitted the case for fresh consideration.
23.  On 12 December 2003 the Dniprovskiy District Court resumed the proceedings.
24.  On 17 March 2005 the court rejected M.’s claim to have the marriage declared void and dismissed the applicant’s claim because she had failed to attend the hearing.
25.  On 28 July 2005 and 21 May 2007 respectively, the Kyiv City Court of Appeal and the Donetsk Regional Court of Appeal, acting as a court of cassation, dismissed M.’s appeals.
26.  A substantial number of the approximately seventy hearings in this set of proceedings were adjourned following the parties’ requests, referring to their poor state of health or their failure to appear before the court. In her requests to adjourn the hearings the applicant, who, it appears from the available documents, was represented, requested the trial courts either not to hold hearings in her absence or to stay the proceedings till her recovery. The trial courts stayed the proceedings several times pending the parties’ recovery. The courts further warned the parties that they would examine the case in the respective party’s absence; on one occasion the court fined the applicant for non-attendance, but this decision was later quashed upon the applicant’s appeal.
27.  According to the applicant, she did not appeal against the judgment of 17 March 2005 but in August 2005 she instituted new and separate divorce proceedings in the Golosiyivsky District Court of Kyiv. On 14 March 2006 the court divorced the applicant and M.
B.  Proceedings on the property rights to the apartment
28.  In 1986 the applicant’s family was granted tenancy of a publicly owned two-roomed apartment. On 28 November 1991 M., with the applicant’s consent, bought the apartment from the local municipal authority.
29.  On 25 November 1996 the applicant instituted proceedings in the Moskovskiy District Court of Kyiv against M., seeking to declare the above sale contract void.
30.  On 15 November 1996 the court attached the apartment in question.
31.  In March 1997 the applicant amended her claims, claiming ownership of half of the apartment.
32.  In April 1997 M. forcibly evicted the applicant from the apartment. The applicant moved to Yerevan, Armenia, and resided there until her death.
33.  On 29 May 1997 the Moskovskiy District Court stayed the proceedings pending determination of the divorce proceedings.
34.  In the period between 22 October 1999 and January 2000 the case was transferred to the Starokyivskiy and Kharkivskiy District Courts of Kyiv, following the relevant decisions by the Kyiv City Court.
35.  On 31 January 2000 the Kharkivskiy District Court of Kyiv, having taken over the case, decided to stay the proceedings pending determination of the divorce proceedings.
36.  On 29 August 2002 the Golosiyivskiy District Court of Kyiv (before October 2001 the Moskovskiy District Court of Kyiv) lifted the attachment order on this apartment as “the main dispute had been resolved”. According to the applicant, neither she nor her representative were present at this hearing. She also contended that Judge U., the president of the court, who rendered this ruling, had intervened unlawfully in the proceedings as at that moment they were pending before the Darnytskiy District Court of Kyiv (formerly the Kharkivskiy District Court of Kyiv). The applicant further pointed out that in the ruling of 29 August 2002 Judge U. had referred to a judgment which did not exist.
37.  On 20 September 2002 M. made a gift of the apartment to K.N., a third person. On 21 February 2003 the latter sold the apartment to K.R. The applicant alleged that she only became aware of the ruling of 29 August 2002 in April 2003, when the apartment had been already sold.
38.  On 3 April 2003 the Darnytskiy District Court (formerly the Kharkivskiy District Court of Kyiv, see paragraph 17 in fine) made an attachment order in respect of the apartment in question. On 21 June 2004 the Kyiv City Court of Appeal amended the order so that it applied to half of the apartment only. According to the applicant, neither she nor her representative was summoned to the last-mentioned hearing. On 21 March 2006 the Supreme Court of Ukraine upheld the ruling of 21 June 2004.
39.  On 7 May 2003 the court rejected the applicant’s request to renew her the time-limit for appeal against the decision of 29 August 2002. There is no evidence that the decision of 7 May 2003 has been ever sent to the applicant. According to the applicant, she learned about it on 30 July 2004 at the latest from the letter of the Kyiv City Court of Appeal. There is no evidence that the applicant has ever tried to obtain a copy of the decision of 7 May 2003 and to appeal against it.
40.  On 17 February 2004 the Darnytskiy District Court inquired of the Dniprovskiy District Court as to the outcome of the divorce proceedings.
41.  On 26 June 2006 the Darnytskiy District Court resumed the proceedings.
42.  On 12 September 2006 the applicant submitted an additional claim to declare the gift contract of 20 September 2002 and the sale contract of 21 February 2003 (see paragraph 37 above) void.
43.  On 21 September 2006 the case was transferred for examination to the Golosiyivskiy District Court. On 18 January 2007 the Kyiv City Court of Appeal quashed this decision on an appeal by the applicant and remitted the case back to the Darnytskiy District Court.
44.  On 16 June 2007, both parties, the applicant and M., having died, the Darnytskiy District Court stayed the proceedings until the identity of the parties’ heirs had been determined.
45.  On 10 October 2007 Mrs Sardaryan joined the proceedings as the sole heir to both parties. She also modified the claims, seeking to have the contracts of 20 September 2002 and 21 February 2003 declared void and to have the court recognise that she owned the apartment outright. In this regard she indicated K.N. and K.R. as defendants.
46.  On 5 November 2007 the proceedings were resumed.
47.  On 26 June 2008 the Darnytskiy District Court found for Mrs Sardaryan. On 28 October 2008 the Kyiv City Court of Appeal upheld this decision. On 15 September 2010 the Supreme Court of Ukraine quashed these decisions and remitted the case for a fresh consideration to the first instance court. The proceedings are apparently still pending.
THE LAW
I.  THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS
48.  The applicant complained that the length of the divorce and in rem 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 ...”
A.  Admissibility
49.  The Government submitted that Mrs Sardaryan could not claim to be a victim within the meaning of Article 34 of the Convention and invited the Court to strike the application out of its list of cases. In particular, they pleaded that no “civil rights and obligations” of Mrs Sardaryan had been determined in the divorce and in rem proceedings between her parents.
50.  The Court notes that the applicant died on 12 January 2007, after lodging her application under Article 34 of the Convention in July 2004. It reiterates that in various cases in which an applicant has died in the course of the Convention proceedings it took into account the statements of the applicant’s heirs or of close members of his family expressing their wish to pursue the application (see, among other authorities, Kalló v. Hungary, no. 30081/02, §§ 24-25, 11 April 2006). The Court considers that Mrs Sardaryan, who inherited from the applicant, continued her proceedings on the national level and stated her intention of continuing the proceedings before this Court, has a legitimate interest in obtaining a finding that there has been a breach of the applicant’s rights.
51.  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
1.  Period to be considered
52.  The Government contended that the in rem proceedings to which the applicant was party ended on 12 January 2007 when she died. The ensuing proceedings were, in their view, out of the scope of the application as, once she had inherited from and replaced the applicant in those proceedings, Mrs Sardaryan modified the applicant’s claims and pursued her own legal interests.
53.  The Court observes that the periods 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.
54.  It further observes that the divorce proceedings ended on 21 May 2007 and thus lasted nine years and eight months at three levels of jurisdiction.
55.  As to the dies ad quem in the proceedings on the property right over the disputed apartment, the Court notes that after M.’s death Mrs Sardaryan apparently has dropped the applicant’s property rights claim for ½ of the apartment being a single heir of both parties.
56.  However, in October 2006 within these proceedings the applicant also lodged an additional claim (see paragraph 42 above) which was maintained by Mrs Sardaryan. It follows that the scope of the applicant’s complaint concerning the in rem proceedings is not limited to the events only prior to the date of the applicant’s or M.’s death. Accordingly, in so far as the impugned proceedings have been never terminated and are apparently still pending, they have lasted so far fourteen years and four month.
2.  Reasonableness of the length of proceedings
(a)  Submissions by the parties
57.  The Government admitted that the matters before the domestic courts were not complex per se but were complicated as a result of the parties’ new claims and their modifications. The Government further averred that the parties’ behaviour (for example, non-attendance at the court hearings and lodging of appeals against the court decisions) in the course of the impugned proceedings had caused considerable delays and the respondent State could not be blamed for them. The Government concluded that there was no violation of the “reasonable time” requirement under Article 6 § 1 of the Convention.
58.  The applicant disagreed.
(b)  General principles
59.  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). In cases relating to civil status, what is at stake for the applicant is also a relevant consideration, and special diligence is required in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life (see Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I).
(c)  Application of these principles to the present case
60.  Turning to the present case, the Court observes that neither set of proceedings was complicated, either on points of law or matters of fact. It agrees with the Government that new claims and their modifications somewhat complicated the cases, but this cannot justify the whole length of proceedings.
61.  As to the conduct of the applicant, the Court notes that she caused significant delays in the divorce proceedings by failing to attend hearings for, inter alia, health reasons, and even when represented before the courts she requested the latter not to hold hearings in her absence (see paragraph 26 above). It accepts that these delays cannot be imputed to the respondent State. The same can be held with respect to the delays caused by M.
(i)  Divorce proceedings
62.  Nevertheless, these delays cannot be wholly removed from the authorities’ responsibility either. In the divorce case the domestic courts faced opposing claims by aged persons whose state of health was very poor. In the Court’s view the courts were called on to dispose of these claims with particular expedition. The domestic courts instead waited in vain for the parties’ recovery, staying the proceedings and causing unnecessary delays. As to the applicant’s requests to hold the hearing in her presence only, the Court would reiterate that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see, for example, Scordino v. Italy (no. 1), [GC], no. 36813/97, § 183, ECHR 2006‑...).
63.  Furthermore, the case was remitted for fresh examination four times, on the ground that the trial court had failed to take into account some pieces of evidence or to comply with rules of procedure in that straightforward case (see paragraphs 13, 16, 19 and 22 above). Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, it considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003).
64.  To this end the Court adds that this case was shifted from one trial court to another several times (see paragraph 17 above) and that caused further delays in so far as every new judge needed additional time to get acquainted with the case file (see, mutatis mutandis, Moiseyev v. Russia, no. 62936/00, § 191, 9 October 2008). Given that no explanation was furnished by the Government as to why those transfers were necessary, these delays cannot be considered reasonable. In the light of this and having regard to the short period of time needed to grant the applicant and M. a divorce in a separate set of proceedings (see paragraph 27 above), the Court finds that the domestic authorities fell short of their obligation to dispose of the divorce case with particular expedition.
(ii)  Proceedings on the property rights to the apartment
65.  As to the in rem proceedings, assuming that the outcome of the divorce case was crucial for examination of the property claims, the Court notes that their length was the direct result of the delays caused in the divorce proceedings as set out above. In this regard the Court refers to the stay of the in rem proceedings between May 1997 and June 2006 pending the determination of the divorce proceedings. Additionally the Court emphasises the transfers of the case from one trial court to another (see paragraphs 34 and 43 above) which were also not explained by the Government.
66.  The Court finally notes that, although the present subject of the dispute considerably differs from the initial one, these new claims were indirectly caused by the lengthy examination of the initial claim since the applicant was forced to lodge additional claims after the apartment in question was gifted and then sold to third parties while property rights proceedings were still pending. Moreover, these proceedings are still pending allegedly before the first instance court. In such circumstances the Court finds that the length of these proceedings exceeded what can be considered reasonable.
(d)  Overall conclusion
67.  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, and Efimenko v. Ukraine, no. 55870/00, § 58, 18 July 2006).
68.  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.  THE COMPLAINT ABOUT THE FAIRNESS OF THE INJUNCTION PROCEEDINGS
69.  The applicant complained under Article 6 § 1 of the Convention that Judge U., who had lifted the attachment on 29 August 2002, had not been impartial, had had no power to deal with the matter, and that the principle of equality of arms had been infringed.
Admissibility
70.  The Government stated that the applicant’s complaint had been submitted outside the six-months’ time-limit since the applicant had learned about the decision of 29 August 2002 in April 2003 but had lodged her application in July 2004 only. Moreover, neither the applicant, nor her representative appealed against the decision of 7 May 2003 by which the applicant’s request to renew her the time-limit for lodging an appeal against the decision of 29 August 2002 was rejected.
71.  The applicant stated that she had learned about the decision of 7 May 2003 in July 2004 only and since she did not have its copy, it was impossible for her to lodge an appeal against this decision.
72.  The Court notes that the proceedings in question concerned lifting of restraint on alienation of apartment while the applicant claimed property rights for half of this apartment. Although the “civil” nature of the right at stake (i.e. property right over apartment) is apparent, whether the interim measure in question was capable of effectively determining that right is less clear-cut (see, Micallef v. Malta [GC], no. 17056/06, §§ 84-85, 15 October 2009).
73.  The Court, however, will not examine the issue of applicability of Article 6 of the Convention to the proceedings in question since the applicant’s complaint is in any event inadmissible for the following reasons.
74.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies which are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The Court notes that the applicant became aware of the decision of 29 August 2002 in April 2003. She requested to renew her the time-limit for an appeal but was refused on 7 May 2003. The applicant learned about this refusal in July 2004. However, she has never requested to be provided with a copy of the decision of 7 May 2003 and has never appealed against it.
75.  The Court recalls that it is incumbent on the interested party to display special diligence in the defence of his/her interests and to take the necessary steps to apprise himself/herself of the developments in the proceedings (see, among other authorities, Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001; Trukh v. Ukraine (dec.), no. 50966/99, 14 October 2003; and Aleksandr Shevchenko v. Ukraine, no. 8371/02, § 27, 26 April 2007). Although by July 2004 the domestic court has renewed the restrain on alienation of the disputed apartment, the decision of 29 August 2002 remained valid and neither of the violations of Article 6 § 1 of the Convention, alleged by the applicant before the Court, have been addressed within the national legal system. Therefore, the Court considers that by failing to appeal against the decision of 7 May 2003 the applicant did not exhaust the effective domestic remedies available to her.
76.  The Court thus declares the applicant’s complaint about unfairness of the injunction proceedings inadmissible under Article 35 §§ 1 and 4 of the Convention.
III.  OTHER COMPLAINTS
77.  The applicant also relied on Article 1 of Protocol No. 1 in respect of lifting of restraint on alienation of apartment on 29 August 2002. Additionally the applicant complained under Article 6 § 1 of the Convention that neither she nor her representative had been summoned to the hearing on 21 June 2004 (see paragraph 38 above).
78.  Having carefully considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
79.  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.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
80.  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
81.  The applicant claimed 2,175 euros (EUR) in respect of pecuniary damage and EUR 8,000 in respect of non-pecuniary damage. The first-mentioned claim consisted of legal and transport (flights between Yerevan and Kyiv) expenses the applicant had incurred in the course of the domestic proceedings.
82.  The Government contested these claims.
83.  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 considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards her EUR 4,500 under that head.
B.  Costs and expenses
84.  The applicant did not submit any claim under this head. The Court therefore makes no award.
C.  Default interest
85.  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 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 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnas 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 2 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mark Villiger
	 Deputy Registrar	President