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FIFTH
SECTION
CASE OF DOLGIKH v. UKRAINE
(Application
no. 9755/03)
JUDGMENT
STRASBOURG
28
June 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 Dolgikh 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 5 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9755/03) 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, Mr Aleksandr Viktorovich Dolgikh (“the
applicant”), on 28 February 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
1 December 2005 the
Court decided to communicate the applicant's complaint
under Article 6 § 1 concerning the length of
civil 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 1952 and lives in Mykolayiv.
A. The first set of proceedings
- In
1990 the applicant's mother instituted civil proceedings in the
Central District Court of Mykolayiv (the “District Court;”
Центральний
районний суд
м. Миколаєва)
against Mr S. (a private person), the co-owner of her
house, seeking to divide adjacent land. In the course of the
proceedings, the courts found that the disputed land consisted of two
plots. One plot (“Plot A”) had been allotted for the
joint use of the house owners by the Mykolayiv City Council (the
“Council”). The other plot (“Plot B”)
was used by the house owners without any authorisation.
- In
1993 the applicant, having acquired the title to his mother's part of
the house, succeeded her as the plaintiff in the proceedings.
- In
March 1995 the District Court informed the Council that the house
owners used Plot B without authorisation and requested it to resolve
the issue. On 4 April 1995 the Council gave the house
owners joint title to Plot B.
- In
November 1996 the proceedings were suspended in connection with a
second set of proceedings instituted in July 1996 (see the
detailed description of these proceedings in section B below). In
2001 the proceedings were resumed, however, in October 2001 suspended
again on account of Mr S.'s death. On 3 September 2002 the
proceedings were resumed, as Mr S.'s heirs - Mr G.S. and Ms L.S.
– were admitted to the proceedings as defendants.
- On
2 October 2002 the District Court gave a decision on the merits of
the dispute, having divided the land between the parties and having
obliged them to abstain from installing fences or other constructions
between the divided plots of the land. The court also ordered the
defendants to pay the applicant 41.26 hryvnyas (“UAH”)
in compensation of fees and expenses.
- On
3 December 2002 the Regional Court modified this judgment, having
relieved the parties from the obligation to abstain from installing
constructions and having decreased the amount of compensation due to
the applicant to UAH 9.08.
- On
23 December 2003 the Supreme Court gave a final decision in the case,
having rejected the applicant's request for leave to appeal in
cassation.
B. The second set of proceedings
- In
July 1996 Mr S. instituted civil proceedings against the Council and
the applicant seeking annulment of the Council's decision of
4 April 1995, vesting in him and the applicant a joint
title to Plot B, and claiming damages.
- On
7 August 1997 the District Court left Mr S.'s complaint without
consideration on account of Mr S.'s repetitive failures to
appear at the hearings. This decision was not appealed against and
became final on 18 August 1997.
- On
12 December 1997 the Presidium of the Regional Court quashed this
decision following a “protest” introduced by its
President for want of evidence that Mr S. had been duly notified
of the hearing dates and remitted the case to the District Court for
consideration on the merits.
- On
30 October 1998, following the applicant's complaint about the length
of the proceedings, the President of the Regional Court reprimanded
the President of the District Court for lack of action in
facilitating prompt consideration of the case and, inter alia,
ensuring attendance of the hearings by the parties.
- On
17 January 2000 the District Court annulled the Council's decision of
4 April 1995 and rejected Mr S.'s claims for damages. On 16 February
2000 the Regional Court quashed this judgment and remitted the case
for a fresh consideration.
- On
12 June 2000 the District Court annulled the Council's decision of
4 April 1995 and awarded Mr S. 370 hryvnyas
in non-pecuniary damage against the Council. On 26 July 2000 the
Regional Court quashed the judgment of 12 June 2000 and
remitted the case for a fresh consideration.
- On
27 December 2000 the District Court dismissed Mr S.'s claims.
The applicant requested the District Court to amend this judgment
(постановити
додаткове
рішення) by
ordering Mr S. to compensate the applicant for his court
expenses and the time, which he had given to the proceedings.
- On
29 January 2001 the District Court allowed the applicant's request in
part and amended the judgment, ordering Mr S. to pay the
applicant UAH 30.09
in expenses and dismissing the remainder of his claims.
- On
23 January 2002 the Regional Court dismissed the applicant's appeal.
- On
12 April 2005 the Supreme Court gave a final decision, rejecting the
applicant's request for leave to appeal in cassation against the
decision of 29 January 2001.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicant introduced a new complaint under
Article 13 of the Convention complaining that he had no
effective remedies for expediting the proceedings in his case.
- In
the Court's view, this new complaint is not an elaboration of the
applicant's original complaint under Article 6 § 1
of the Convention, lodged with the Court approximately three years
and two months earlier, on which the parties have commented. The
Court considers, therefore, that it is not appropriate now to take
this matter up (see Skubenko v. Ukraine
(dec.), no. 41152/98, 6 April
2004).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the two sets of 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
two sets of proceedings started in 1990 and 1996 respectively.
However, the period to be taken into consideration began only on
11 September 1997, when the recognition by Ukraine of the
right of individual petition took effect. Nevertheless, 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 23 December 2003 in respect of the first
set of proceedings and on 12 April 2005 in respect of the
second set. The proceedings thus lasted six years and three months
and seven years and seven months respectively 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 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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).
- 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 two sets of proceedings
was excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a breach of Article 6 §
1.
III. OTHER COMPLAINTS
- The
applicant further complained under Articles 6 § 1
and 10 of the Convention about the general unfairness of the hearings
in both sets of the proceedings.
- In
the light of all the material in its possession, and insofar 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 and 4 of the Convention.
IV. 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 952 euros (EUR) in respect of pecuniary damage and
EUR 40,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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 applicant EUR 1,800 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 16 for the costs and expenses
incurred before the domestic courts and before the Court.
- The
Government left the matter to the Court's discretion.
- Regard
being had to the circumstances of the case and the submissions of the
parties, the Court awards the applicant the full amount claimed.
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 1,800
(one thousand eight hundred euros) in respect of non-pecuniary damage
and EUR 16 (sixteen euros) in respect of costs and expenses, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(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 28 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
