BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF NATALIYA SHEVCHENKO v. UKRAINE
(Application
no. 68762/01)
JUDGMENT
STRASBOURG
15 May 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 Nataliya Shevchenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Volodymyr
Butkevych,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 68762/01) 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 Nataliya Leonidovna Shevchenko (“the
applicant”), on 27 September 2000.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska, succeeded by
Mr Y. Zaytsev.
- On
26 May 2004 the Court
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
A. Civil proceedings
- The
applicant was born in 1965 and lives in Kyiv.
- Between
1991 and September 1997 the applicant and her minor son born in 1984
were officially registered as residents in a municipal hostel rented
by the Municipal Post Office, the applicant’s employer, for its
employees. Throughout this period, the Post Office, in fact, never
provided the applicant with a room in this hostel, citing lack of
available premises. The applicant and her son were allowed to occupy
two beds in a hostel for single individuals managed by “D.H.”,
another company. After the expiration of the residency registration,
in October 1997 the applicant found an unoccupied room in the Post
Office’s hostel and moved there with her son.
- On
28 November 1997 the Post Office brought eviction
proceedings against the applicant (and her minor son) before the
Starokyivsky District Court of Kyiv (Старокиївський
районний суд
м. Києва).
- On
10 December 1997 the Starokyivsky District Court of Kyiv, citing the
lack of territorial jurisdiction, referred the case to the
Leningradsky District Court of Kyiv (Ленінградський
районний суд
м. Києва).
The latter, in turn, on 22 March 1998, transmitted the case to the
Minsky District Court of Kyiv (“the District Court”
Мінський
районний суд
м. Києва).
8. On
4 June 1998 the applicant lodged a counter-claim, asserting
her right to occupy the room in the Post Office’s hostel.
- In
1999 the Kyiv State Administration decided to convert the Post
Office’s hostel into a municipal apartment building enabling
its occupants to apply for life-long tenancies.
- On
20 January 2000 the District Court ordered the applicant’s
and her son’s removal to the “D.H.’s” hostel
and dismissed her counterclaim. The court found, in particular, that
the applicant had never obtained proper authorisation to occupy the
room in the Post Office’s hostel. On 29 March 2000
the Kyiv City Court (“the City Court”; Київський
міський суд)
upheld this judgment on the applicant’s appeal in
cassation, it became final and enforcement proceedings were
instituted.
- On
25 September 2000 Deputy City Prosecutor ordered suspension
of the enforcement proceedings.
- On
25 December 2000 the Presidium of the Kyiv City Court
quashed the previous judgments following the
protest introduced by the Deputy City Prosecutor and remitted
the case to the District Court for a fresh consideration. The court
found, in particular, that “D.H.” should have been
summoned to the proceedings, as it was unclear whether the applicant
had any right to reside in its hostel.
13. On
25 December 2001 the District Court rejected the Post
Office’s eviction claim, at the same time having refused to
recognize the applicant’s right to occupy the room in its
former hostel. It found that, although the applicant
had no proper authorisation to move into the room at issue, she could
not be evicted, as her status of a “D.H.” hostel resident
had never been regularized and she had no alternative lodging. Both
parties appealed.
- On
2 April 2002 the City Court quashed this judgment and remitted the
case for a fresh consideration, having found, in particular, that the
first-instance court had failed to instruct the applicant that, in
view of the City Administration’s decision to convert the
hostel into an apartment building, she could request to be issued
with an authorisation for life-long tenancy.
- On
20 December 2002 the applicant amended her claims, seeking,
in particular, to obtain authorisation of tenancy. Her son, having
reached the age of majority, joined the proceedings.
- On
12 March 2003 the District Court dismissed the Post
Office’s eviction claim and ordered the City Administration to
issue the applicant with tenancy authorisation. The court found, in
particular, that, having been registered as a resident in the Post
Office’s hostel, the applicant had acquired the right to occupy
a room in it as early as in 1991. The Post Office, however, had
unlawfully failed to provide her with a room. The Post Office
appealed.
- On
12 June 2003 the City Court quashed this judgment and
remitted the case for a fresh consideration. It found, in particular,
that the District Court’s conclusions concerning the
applicant’s right to reside in the Post Office’s hostel
were insufficiently reasoned. The applicant appealed in cassation
against this ruling.
- On
15 September 2003 the Supreme Court rejected the
applicant’s request for leave to appeal in cassation.
- On
26 January 2005 the District Court rejected the Post Office’s
eviction claim and upheld the applicant’s right to occupy the
room. This judgment was not appealed against.
- In
the course of the proceedings the District Court scheduled some sixty
hearings. Some twelve of these hearings were adjourned on account of
the applicant’s or her representative’s absences in
court; eleven on account of the plaintiff’s absences or
requests; and fifteen on account of judges’ vacations and
various other court matters.
B. Other events
21. The
applicant also maintained, without providing details, that her
employer was deliberately processing data on her family life in
violation of the law, that the bailiffs had unlawfully interfered
with her possessions during the enforcement proceedings
and that her son had been unable for a prolonged period of time to
receive a passport and to obtain access to professional education on
account of lack of residency registration. The applicant did not
raise any relevant complaints before the domestic judicial
authorities.
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.
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 observes that the period to be taken into consideration began
on 28 November 1997 and ended on 26 January 2005.
However, the Court notes that the three-month period between
25 September and 25 December 2000, when neither
the judicial, nor the enforcement proceedings were pending, should
not be included in the calculation of the overall length of the
proceedings (see Vyrovyy v. Ukraine, no. 28746/03, § 36,
12 July 2007). The proceedings thus lasted six years and eleven
months, during which period the matter was considered on the merits
by two levels of jurisdiction on several occasions.
- 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 finds that the proceedings at issue in the
present case, which concerned determination of the applicant’s
housing rights were important for the applicant. It further considers
that the complexity of the case and the applicant’s conduct
alone cannot explain the overall length of the proceedings. It finds
that a number of delays (in particular, repetitive remittals of the
case for a fresh consideration, including after a judgment therein
became final, adjournments of hearings on account of court matters
and the conduct of the defendant – a State entity) are
attributable to the Government.
- 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., Frydlender, cited above; Golovko v.
Ukraine, no. 39161/02, § 50, 63, 1 February
2007; Karnaushenko v. Ukraine, no. 23853/02, §§ 59,
30 November 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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained of the fact that in Ukraine there was no
court to which application could be made to complain of the excessive
length of proceedings. She relied on Article 13 of the Convention.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise 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). It notes that the objections and arguments put forward
by the Government have been rejected in earlier cases (see among
other authorities, Efimenko v. Ukraine, no. 55870/00,
§ 64, 18 July 2006) and sees no reason to reach a different
conclusion in the present case.
- Accordingly,
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.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1
about the unfairness of the proceedings in her case and under
Article 8 about the failure of the domestic judicial authorities
to uphold her right of occupancy. She further alleged a violation of
Article 8 on account of the unlawful processing of data concerning
her family life and of Article 1 of Protocol No. 1 on
account of alleged interference with her possessions in the course of
enforcement of her eviction order in 2000 as well as complaining
under Article 2 of Protocol No. 1 and Article 1 of
Protocol No. 4 about alleged interference with her son’s
right to education and his freedom of movement on account of the lack
of official residency registration. Lastly, the applicant invoked
Articles 4, 5, 7, 12 and 14 of the Convention to the facts of
the present case.
- Having
carefully considered the applicant’s submissions in the light
of all the material in its possession, the Court finds that, insofar
as the matters complained of are within its competence, 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 submitted that she had suffered pecuniary and non-pecuniary
damage on account of the prolonged failure of the judicial
authorities to decide her claims. However, she was not able to
specify the amount of these claims and requested the Court to rule on
an equitable basis.
- The
Government left the matter to the Court’s discretion.
- 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, the Court takes the view that the applicant must have
suffered some non-pecuniary damage as a result of the violations
found (see e.g. Silka v. Ukraine, no. 3624/03, § 23,
18 January 2007). Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court
awards the applicant EUR 2,000 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 complaints concerning the excessive
length of the proceedings and lack of remedies in this respect
admissible and the remainder of the application inadmissible;
- 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 2,000 (two
thousand euros), plus any tax that may be chargeable in respect of
non-pecuniary damage, to be converted into the national currency 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 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
