European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF OMELCHENKO v. UKRAINE

(Application no. 44158/19)

 

 

 

 

JUDGMENT

STRASBOURG

23 March 2023

 

 

 

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

 

In the case of Omelchenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Lado Chanturia,
          María Elósegui, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

 

 

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

 

Having deliberated in private on 2 March 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the allegedly excessive length of proceedings regarding contact arrangements between the applicants and the second applicant’s travel abroad, and the alleged absence of an effective remedy in this regard. The applicants rely on Articles 6, 8 and 13 of the Convention.

 

 

 

THE COURT’S ASSESSMENT

I.         excessive LENGTH OF COURT PROCEEDINGS AND ABSENCE OF AN EFFECTIVE DOMESTIC REMEDY

5.  Relying on Articles 6 and 8 of the Convention, the applicants complained that the domestic judicial proceedings had been unreasonably long. Relying on Article 13, they complained of the lack of an effective domestic remedy in that regard.

6.  The Government argued, in the main, that the length of the proceedings at issue had not been unreasonable and that Article 13 did not apply.

7.  The Court considers that the applicants’ present complaints are to be examined solely under Article 6 § 1 and Article 13 of the Convention.

8.  The Court finds that the complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

9.  The relevant general principles regarding the State’s obligations under Article 6 § 1 and Article 13 to ensure that cases concerning a person’s relationship with his or her child are treated with special or exceptional diligence and that there is an effective remedy for an alleged breach of the requirement of the guarantee of “reasonable time” are summarised in several cases (see, among other authorities, Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999‑I; Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI; and Milovanović v. Serbia, no. 56065/10, § 88, 8 October 2019).

A.    First set of proceedings

10.  The proceedings at issue concerned the hindering of communication and contact between a father and his child. The child was less than six years old when the proceedings were initiated, and by their nature they had to be treated with exceptional diligence.

11.  The proceedings lasted around five years and took place before the domestic courts at three levels of jurisdiction. For most of that period - around three years in total - the case was pending before the first-instance court, which had to re-examine it three times. This period was extremely long, and even though the first applicant repeatedly informed the court that his contact with the second applicant was being hindered by the opposing party, a fact which was eventually confirmed by the Dnipro District Court’s judgment of 14 November 2017, no meaningful action was taken to expedite the proceedings (see paragraph 2 above).

12.  The applicant partly contributed to the overall length of the proceedings by amending his claims on several occasions and lodging various procedural applications and appeals, but there is no evidence that he abused his procedural rights instead of engaging in legitimate procedural activity, and his actions caused no significant delays.

 

 

 

B.    Second set of proceedings

16.  Having regard to its findings above (see paragraphs 14 and 15 above), the Court considers that it is unnecessary to assess whether there has been a violation of the Convention as regards the length of the second set of proceedings, which, for the most part, overlapped with the first set of proceedings that has already been examined.

II.     LENGTHY NON-ENFORCEMENT OF the JUDGMENT of the Dnipro District Court of 14 November 2017

 

18.  Accordingly, the Court finds that this part of the present application should be rejected as manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

 

20.  The Government contended that most of the claims were unsubstantiated and/or excessive.

21.  The Court awards the applicants EUR 7,500 jointly in respect of non‑pecuniary damage, plus any tax that may be chargeable, and EUR 1,000 for the legal costs of the proceedings before the Court, plus any tax that may be chargeable to the applicants. The latter amount is to be paid directly into the bank account of Mr B. Fokiy (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016). The remainder of the applicants’ claim should be rejected.

22.  The default interest rate 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’ complaints under Article 6 § 1 and Article 13 of the Convention concerning the length of the domestic judicial proceedings and the absence of an effective domestic remedy in that regard admissible, and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings concerning contact arrangements;

3.      Holds that there has been a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy in that regard;

4.      Holds that it is not necessary to decide whether there has been a violation of the Convention on account of the length of the proceedings regarding the second applicant’s travel abroad;

5.      Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

 

(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;

6.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 23 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                    Carlo Ranzoni
          Deputy Registrar                                                      President