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FIFTH
SECTION
CASE OF LEBEDEVA v. UKRAINE
(Application
no. 18345/03)
JUDGMENT
STRASBOURG
20
December 2007
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 Lebedeva v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 18345/03) 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 Alla Stepanovna Lebedeva (“the
applicant”), on 5 April 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
13 March 2006 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Kharkiv.
- The
applicant is the grandmother of a minor P.E. born in 1990. After the
death of her daughter, her son-in-law, P.V., did not allow her to see
P.E.
- On
10 January 1997 the applicant instituted proceedings against P.V.,
seeking permission to see her granddaughter regularly.
- On
3 December 1999 the Ordzhonikidzevsky District Court of Kharkiv
(hereafter “the Ordzhonikidzevsky Court”) allowed the
applicant's claim in part.
- On
18 January 2000 the Kharkiv Regional Court quashed this decision and
remitted the case for a fresh consideration.
- On
7 July 2000 Ordzhonikidzevsky Court found against the applicant.
- On
5 September 2000 the Kharkiv Regional Court quashed this decision and
remitted the case for a fresh consideration.
- On
20 June 2001 the Frunzensky District Court of Kharkiv allowed the
applicant's claim in part.
- On
9 January 2002 the Kharkiv Regional Court of Appeal quashed this
decision and terminated the proceedings and left the applicant's
claim without consideration as she had not used the possibility of
extrajudicial settlement of the dispute before the Tutelage Board.
The applicant was informed that she could re-lodge her claim after
exhausting this possibility.
- On
14 August 2002 the Supreme Court upheld the ruling of the Kharkiv
Regional Court of Appeal, thereby terminating the proceedings. The
applicant received the copy of this ruling by regular mail on 7
October 2002.
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 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
Court notes that in the present case the proceedings began on
10 January 1997 and ended on 14 August 2002. Thus,
part of the proceedings complained of relates to the period prior to
11 September 1997, the date on which the Convention came into force
in respect of Ukraine. The length of the
proceedings within the Court's competence was, therefore, four
years and eleven months for three levels of jurisdiction. However,
in assessing the reasonableness of the time that elapsed after
11 September 1997, account must be taken of the state of proceedings
on that date (see Milošević v. “the former
Yugoslav Republic of Macedonia”, no. 15056/02, § 21,
20 April 2006; Styranowski v. Poland, no. 28616/95, § 46,
ECHR 1998-VIII; Foti and Others v. Italy, judgment of
10 December 1982, Series A no. 56, p. 18, § 53).
A. Admissibility
- 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
- The
Government submitted that the domestic courts considered the case
without substantial delays attributable to the State. In particular,
they outlined that the case was complex and that in the course of its
first consideration by the Ordzhonikidzevsky Court the statements by
several witnesses as well as representatives of the Tutelage Board,
the Education Department, school and hospital were heard.
- The
applicant disagreed and stated that the proceedings had not been
conducted with sufficient diligence.
- 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).
- Turning
to the facts of the present case, the Court notes that the case
concerned the applicant's right of contact with her grand-daughter
after her daughter's death and, therefore, was of particular personal
importance for her.
- The
Court outlines that the case was on three occasions examined by the
first instance court following the applicant's appeals. In
particular, for the first time the case was pending before the
Ordzhonikidzevsky Court for more than two years and eleven months.
Though the Court has no doubt that examination of such cases requires
the statements of witnesses and third parties being heard, this
period cannot be considered as reasonable regard being given to
sensitivity of the proceedings' subject-matter and to the fact that
the applicant's claim was finally left without consideration.
- Furthermore,
the Court notes that the protracted length of the proceedings was to
the large extent due to repetitive re-examination of the case.
Although the Court is not in a position to analyse the quality of the
case-law of the domestic judicial authorities, it observes that,
since remittal is usually ordered because 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).
- 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, 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 ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1
of the Convention about the outcome and unfairness of the proceedings
in her case. She also complained in general terms about a violation
of her right to a family life (Article 8 of the Convention in
substance).
- However,
in the light of all the materials in its possession, the Court finds
that these submissions do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 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 UAH 100,000 (EUR 14,900) in respect of pecuniary
and non-pecuniary damage without specifying the amount or character
of pecuniary damage caused to her.
- The
Government contested the claim as exorbitant and unsubstantiated.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award her EUR 1,200
under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award.
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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
