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FIFTH
SECTION
CASE OF CHUYAN v. UKRAINE
(Application
no. 24131/03)
JUDGMENT
STRASBOURG
15 November 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 Chuyan v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24131/03) 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, Ms Olga Nikolayevna Chuyan (“the
applicant”), on 4 July 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
20 November 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaints concerning the length of the proceedings
and the lack of remedies in that respect 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 Odessa.
- In
October 1993 the applicant instituted civil proceedings in the
Malynivsky District Court of Odessa (“the Malynivsky Court,”
Малинівський
районний суд
м. Одеса)
against Ms T. V., her sister, seeking to divide
their house and adjacent land. Subsequently the proceedings were
transferred to the Kyivsky District Court of Odessa (“the
Kyivsky Court,” Київський
районний суд
м. Одеса).
- Between
1993 and 2000 some six expert assessments were carried out to develop
proposals for dividing the house and the land.
- On
12 December 2000 the Kyivsky Court rejected the applicant's
claims. The court found that it was not possible to divide the
property to the satisfaction of the parties. This decision became
final.
- On
6 June 2001 the Presidium of the Odessa Regional Court
(“the Regional Court”)
quashed this judgment, following a supervisory protest, lodged
by its Deputy President, and remitted the case for a fresh
consideration. Ms T. V. lodged a counter-claim, proposing an
alternative scheme for dividing the house and the land.
- On
5 December 2001 the Kyivsky Court partly allowed the claims
of both parties, having divided the house and the land between them.
Ms T. V. appealed, seeking to re-divide the house. Neither
party sought to re-divide the land, and the judgment of
5 December 2001 in this part became final.
- On
20 June 2002 the Regional Court amended the judgment of
5 December 2001, having re-divided the house between the
parties. This judgment became final on 17 January 2003,
after the Supreme Court had rejected the applicant's request for
leave to appeal in cassation.
- In
July 2002 Ms T. V. requested the Kyivsky Court to
explain how to reconcile the land-division scheme ordered by the
judgment of 5 December 2001 with that of the house division
pursuant the judgment of 20 June 2002. In its explanatory
decision of 9 August 2002, the court re-divided the land to
remove the inconsistencies with the house-division scheme. The
enforcement proceedings were instituted.
- The
applicant appealed against the explanatory decision of 9 August 2002.
- On
30 March 2004 the Regional Court found that, by re-dividing
the land, the Kyivsky Court had altered the final judgment of
20 June 2002 and thereby exceeded its jurisdictional
authority. The court therefore quashed the explanation of
9 August 2002.
- On
13 April 2004 Ms T. V. requested the Regional
Court to re-open the proceedings and review its decision of
20 June 2002 “in the light of newly disclosed
circumstances” (the quashing of the explanatory judgment of
9 August 2002).
- On
18 May 2004 the Regional Court re-opened the proceedings and on
16 June 2004 re-divided the land to accommodate for the
house-division scheme established on 20 June 2002.
- On
12 July 2004 the applicant appealed in cassation against
the judgments of 5 December 2001 and 20 June 2002
and against the decision of 16 June 2004 to re-divide the
land.
- On
6 December 2006 the Supreme Court rejected the applicant's
request for leave to appeal in cassation against the aforementioned
judgments, finding that on 17 January 2003 they had already
been subject to cassation review. However, the Supreme Court remitted
the case for a new consideration “in the light of newly
disclosed circumstances”, having quashed the decision of
16 June 2004. In particular, it found that this decision
had been taken by an incompetent judicial panel, since one of its
members had previously signed the judgment of 20 June 2002.
- On
5 April 2007 the Regional Court annulled the land-division
scheme established by the judgment of 5 December 2001 and
ordered the division, consistent with the division of the house
pursuant the judgment of 20 June 2002.
- The
applicant has lodged a cassation appeal against this decision,
seeking to re-divide the house. The consideration of her cassation
appeal is pending.
THE LAW
I. SCOPE
OF THE CASE
- Following
the Court's admissibility decision, the applicant made submissions on
the merits, in which she repeated and elaborated on all of her
original complaints.
- The
Government made no comments.
- The
Court recalls that, in its partial decision on admissibility of
20 November 2006, it adjourned the examination of the
applicant's complaints under Article 6 § 1 and Article
13 of the Convention concerning the length of her proceedings against
Ms T.V. regarding the division of property and the lack of effective
remedies in this respect. At the same time, all other complaints of
the applicant were declared inadmissible. Thus, the scope of the case
now before the Court is limited to the complaints, which have been
adjourned (see Agrotehservis v. Ukraine, no. 62608/00,
§ 37, 5 July 2005).
II. 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.
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
proceedings started in 1993. 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
Court further finds that the period between 12 December 2000
and 6 June 2001 cannot be taken into account, as during
this period there existed a final judgment in the applicant's case
and no court or enforcement proceedings were pending.
- The
period in question has not yet ended. It has thus lasted nine years
and seven months so far. During this period the applicant's claims
were examined by three levels of jurisdiction.
- 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 e.g., Pavlyulynets v. Ukraine,
no. 70767/01, §§ 49-52, 6 September 2005
and Moroz and Others v. Ukraine, no. 36545/02,
§ 58-62, 21 December 2006).
- 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.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that she had no effective remedies for
her complaint concerning the excessive length of the proceedings. She
relied on Article 13 of the Convention.
- The
Government considered that Article 13 was not applicable to the
circumstances of the case as the applicant had not made out an
arguable claim under Article 6 § 1.
- The
Court refers to its findings in paragraphs 25 and 31 above and notes
that this complaint is linked to the applicant's complaint under
Article 6 § 1. The Court finds that it must be
declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). The Government did not name any such remedy available to
the applicant.
- The
Court considers that in the present case there has been a violation
of Article 13 of the Convention on account of the lack of a remedy
under domestic law whereby the applicant could have obtained a ruling
upholding her right to have her case heard within a reasonable time,
as set forth in Article 6 § 1 of the Convention (see Efimenko v.
Ukraine, no. 55870/00, § 64, 18 July 2006).
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 14,000 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 on account of the length of the proceedings. Ruling on an
equitable basis, it awards her EUR 2,400 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 in legal fees.
- The
Government contested the claim, having noted that the applicant had
never informed the Court of her representation until in her final
submissions before it.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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. The Court notes that the applicant submitted no documentary
justification for the legal fees claimed. Furthermore, as regards the
Convention proceedings, the Court observes that the case was of no
particular complexity, that the applicant was granted leave to use
Russian language, and that her representative made no submissions on
her behalf. Regard being had to the information in its possession,
the Court rejects the applicant's claim for legal fees.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 2,400
(two thousand four hundred euros) in respect of non-pecuniary damage,
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 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 15 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
