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FIFTH
SECTION
CASE OF CHEPYZHNA v. UKRAINE
(Application
no. 22581/04)
JUDGMENT
STRASBOURG
11 December 2008
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 Chepyzhna v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Renate Jaeger,
Mark
Villiger,
Mirjana Lazarova Trajkovska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22581/04) 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, Ms Zinayida Ivanivna Chepyzhna (“the
applicant”), on 29 May 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant was represented by Mr M. Vitchenko.
- On
6 September 2007 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
- THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1918 and lives in the town of Vyshgorod, Kyiv
Region, Ukraine.
- In
1994 the applicant, resident of Donetsk at that time, moved to Kyiv.
She issued a letter of authority to Mr R. who promised to help the
applicant to exchange her apartment in Donetsk for one in Kyiv.
- Mr
R. sold her apartment to Mrs P. and the latter had subsequently sold
it to Mrs L. The applicant allegedly received no money for it.
A. First set of proceedings
- In
February 1995 Mrs L. instituted proceedings in the Voroshylovskyy
District Court of Donetsk (the “Voroshylovskyy Court”),
claiming that the applicant had lost her right to reside in the
apartment.
- On
22 February 1995 the Voroshylovskyy Court found for Mrs L.
- On
30 October 1995 the Presidium of the Donetsk Regional Court, upon the
protest lodged by the President of the same court, quashed the
judgment of 22 February 1995 and remitted the case for a fresh
examination.
- On
23 June 2000 the Voroshylovskyy Court referred the claims of Mrs L.
to the Kalininskyy District Court of Donetsk (the “Kalininskyy
Court”) for examination.
B. Second set of proceedings
- Meanwhile,
in February 1995 the applicant instituted proceedings in the
Voroshylovskyy Court against Mr R., Mrs P., Mrs L., Mr K. and Mr B.,
the latter two having acted as the real estate agents of Mrs P.,
asking the court to annul the sales contracts in respect of the
apartment and seeking the eviction of Mrs L. from it. She further
claimed her belongings which she had allegedly left in the apartment.
- The
Voroshylovskyy Court considered the case on three occasions and
delivered judgments on 26 July 1995, 5 November 1996 and 10 November
1999, which were overturned by the decisions of the Donetsk Regional
Court on 17 August 1995, 17 April 1997 and 30 March 2000,
respectively.
- On
26 June 2000 the case was remitted for a fresh examination to the
Kalininskyy Court.
C. Joined proceedings
- In
July 2000 the Kalininskyy Court decided to examine the applicant’s
claims and the claims of Mrs L. jointly.
- On
29 October 2001 the court found against the applicant.
- In
the period from 10 December 2001 to 18 October 2002 the applicant
lodged several requests for leave to appeal against the above
judgment with the Kalinskyy Court and the Donetsk Regional Court of
Appeal. The requests were rejected since the applicant failed to
comply with procedural formalities and to respect the time-limits. No
hearing was held during this period.
- On
10 October 2002 the applicant requested the court to renew the
time limit for lodging an appeal against the judgment of 29
October 2001.
- On
18 October 2002 the Kalininsky Court rejected the applicant’s
request to renew a time-limit for appeal against the above judgment.
- The
applicant appealed against the ruling of 18 October 2002. On 15 May
2003 the Donetsk Regional Court of Appeal quashed this ruling.
- On
17 June 2003 the Kalininskyy Court granted the applicant’s
request to renew a time-limit for lodging an appeal against the
judgment of 29 October 2001.
- On
5 August 2003 the Donetsk Regional Court of Appeal upheld the
judgment of 29 October 2001.
- On
19 November 2003 the Supreme Court rejected the applicant’s
request for leave to appeal in cassation. This ruling of the Supreme
Court was sent to the applicant on 1 December 2003.
- In
the course of the proceedings there were five hearings postponed due
to the applicant’s failure to appear, twenty two hearings
postponed due to the defendants’ failure to appear and one -
due to the parties’ failure to appear.
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...”
A. Admissibility
- The
Government submitted that the applicant had not complied with the six
months’ rule as prescribed by Article 35 § 1 of the
Convention.
- The
Court recalls that the six months’ time-limit is respected when
an application is introduced not more than six months after the
applicant has become aware of the decision constituting the final
decision within the meaning of Article 35 § 1 of the
Convention.
- In
the present case, it appears from the information provided by the
applicant that the final decision of the Supreme Court of 19 November
2003 was sent to the applicant on 1 December 2003. The application
with the Court was lodged by the applicant on 29 May 2004. In the
light of these considerations, the Court dismisses the Government’s
preliminary objections.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention
and it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Period to be taken into consideration
30. The Government maintained that 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. Therefore, the applicant’s complaints related to the
events prior to that date should be rejected as incompatible ratione
temporis.
- The
applicant did not comment in that respect.
- The Court notes that the proceedings complained of
began in February 1995 and ended on 19 November 2003. Their overall
duration was eight years and nine months. The Court recalls that the
Convention entered into force in respect of Ukraine on 11 September
1997, thus the period falling within the Court’s competence
ratione temporis lasted six years and two
months. 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).
2. Reasonableness of the length of the proceedings
- The
Government contested the applicant’s complaint, stating that
there were no significant periods of inactivity attributable to the
State. They maintained that the case had been complex and that the
judicial authorities had acted with a due diligence. According to the
Government, the applicant and the defendants were responsible for
some periods of delay in the proceedings. In particular, they stated
that, while lodging her appeal, the applicant failed to comply with
procedural rules. Further they pointed out that the applicant had
lodged numerous demands to summon witnesses and provide additional
documents, which the domestic courts had to consider. The Government
finally maintained that the length of proceedings in the applicant’s
case was not unreasonable.
- The
applicant disagreed.
- 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).
- Concerning
the question of the complexity of the present case, the Court
observes that it concerned a number of issues raised by the applicant
following the allegedly unlawful sale of her apartment. Although the
court was required to examine quite an extensive amount of
documentary evidence, the issues before the court were not of such a
nature as to necessitate an extensive prolongation of the
consideration of the applicant’s case. Therefore, the Court
concludes that the subject matter of the litigation at issue could
not be considered particularly complex.
- The
Court agrees with the Government that the applicant contributed, to
certain extent, to the length of the proceedings. Nevertheless, the
applicant cannot be held primarily responsible for the overall length
of the proceedings in the instant case.
- The
Court considers that a number of delays (in particular, repetitive
remittals of the case for a new consideration, lengthy consideration
of the case by the first instance court, and numerous adjournments of
hearings on account of the defendant’s absence) are
attributable to the Government (see Golovko
v. Ukraine, no. 39161/02, §
43, 1 February 2007).
- The Court has frequently found a violation of Article
6 § 1 of the Convention in cases raising issues
similar to the one in the present case (see
Golovko v. Ukraine,
no. 39161/02, §§ 61-65, 1 February 2007;
Terentyev v. Ukraine, no.
39763/02, §§ 42-46, 29 May 2008; Siliny v.
Ukraine, no. 23926/02, §§ 32-37, 13 July
2006, and Teliga and Others v. Ukraine,
no. 72551/01, § 95, 21 December 2006).
- Having
examined all the materials 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.
Even if the applicant contributed to the length of proceedings in
some respects, her behaviour cannot be relied upon to justify the
overall length of proceedings. 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.
II. OTHER COMPLAINTS
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention about the outcome of the proceedings in her case. The
applicant also complained under Article 1 of Protocol No. 1 that the
failure of the courts to allow her claims violated her property
rights. The applicant finally invoked Articles 2, 3 and 4
of Protocol No. 7 of the Convention without any further
specification.
- The Court, in the light of all material before it and
in so far as these remaining complaints fall within its competence,
finds that they do not disclose any appearance of an unjustified
interference or breach of these provisions and rejects this part of
the application in accordance with Article 35 §§ 3
and 4 of the Convention as being manifestly ill-founded.
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 2,000 euros (EUR) in respect of pecuniary damage.
She further claimed EUR 9,000 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, ruling on an equitable basis, it awards the applicant
EUR 600 in respect of non-pecuniary damage.
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 under Article 6 § 1
of the Convention 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 600 (six
hundred euros) in respect of non-pecuniary damage, to be converted
into the national currency 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 11 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
