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FIFTH
SECTION
CASE OF PYSATYUK v. UKRAINE
(Application
no. 21979/04)
JUDGMENT
STRASBOURG
16
April 2009
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 Pysatyuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Renate Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
Stanislav
Shevchuk, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 24 March 2009,
Delivers
the following judgment, which was adopted on that date.
PROCEDURE
- The
case originated in an application
(no. 21979/04) 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, Mr Leonid Petrovich Pysatyuk (“the
applicant”), on 20 May 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
11 October 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
applicant was born in 1954 and lives in the city of Odessa, Ukraine.
- In
1991 the applicant became a member of the housing cooperative
“Verstatobudivelnyk-2” (“the cooperative”) in
order to be provided with an apartment in the dwelling house to be
constructed by the latter. At the same time he was employed part-time
by the cooperative.
- By
decisions made at a general meeting of the members of the cooperative
on 19 May 1999, 30 June 1999 and 29 September 1999 the applicant's
membership of the cooperative was cancelled on the grounds that he
had failed to pay his contributions on time. Therefore, the applicant
was not provided with the apartment to which he believed he was
entitled (“the apartment”). Later it was given to another
member of the cooperative, Mr S.
- In
October 1999 the applicant instituted proceedings against the
cooperative in the Illichevsk District Court of Odessa requesting the
court to declare the above decisions null and void. He also claimed
compensation for non-pecuniary damage.
- Later,
the applicant lodged additional claims against the Housing Department
of the Odessa City Council, the Odessa Privatisation Agency and Mr
S., challenging the latter's right to own the apartment, seeking the
removal of Mr S.'s family and claiming property rights over the
apartment. The applicant also claimed payment of the salary arrears
from the cooperative, and alleged that
his contributions entitled him to a larger apartment.
- In
January 2003 the Illichevsk District Court of Odessa was closed down.
On an unspecified date the applicant's case was transmitted from that
court to the Malinovsky District Court of Odessa (“the court”).
- In
the period from October 1999 to 20 October 2003 the domestic courts
listed some thirty-nine hearings. Six
hearings were adjourned due to the failure of the representative of
the cooperative to appear or at his request. Two hearings were
adjourned since Mr S. failed to appear. The domestic courts took no
steps to ensure the defendants' presence in the court. Three hearings
were adjourned due to the applicant's failure to appear or at his
request. Most hearings were scheduled at intervals from several
days to two months.
- On
20 October 2003 the court allowed the applicant's claims.
- On
19 February 2004 the Odessa Regional Court of Appeal (“the
court of appeal”) quashed the decision and remitted the case
for fresh consideration to the court.
- On
18 July 2005 the court found against the applicant.
- On
5 October 2005 the court terminated proceedings concerning payment of
the salary arrears and the applicant's claim for
a larger apartment since the applicant had failed to comply
with procedural requirements prescribed by Ukrainian law. The
applicant did not appeal against this ruling.
- On
13 December 2005 the court of appeal quashed the judgment of 18 July
2005 and remitted the case for fresh consideration to the court.
- On
11 July 2006 the court dismissed the applicant's claims.
- On
25 May 2007 the court of appeal quashed the judgment of 11 July
2005 and partly allowed the applicant's claims.
- In
the period from 20 October 2003 until 25 May 2007 the court and the
court of appeal listed some fifteen hearings. One hearing was
adjourned because of the judge's illness, one due to Mr S's failure
to appear, one at the applicant's request. Most
hearings were scheduled at intervals from several days to two months.
No hearings were scheduled by the court between 20 February 2004
and 29 March 2005.
- The
defendants appealed in cassation. On 5 December 2007 the Supreme
Court upheld the judgment given by the court of appeal.
- On
12 August 2008 the judgment of 25 May 2007 was enforced in full.
- On
an unspecified date in 2008 Mr S. instituted new proceedings against
the applicant claiming his property rights over a part of the
apartment on the ground that he had carried out certain repair works.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the judicial 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
period to be taken into consideration began in October 1999 and ended
on 5 December 2007. It thus lasted eight years and two months. The
case was considered by courts at 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
Government maintained that the case had been complex and that the
judicial authorities had acted with due diligence. They further
averred that by lodging additional claims, demanding the provision of
additional documents, requesting the adjournment of hearings, and
appealing to the higher courts, the parties had caused certain delays
to the proceedings and that the State could not be held liable for
the parties' behaviour.
- 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 termination of the applicant's membership in the housing
cooperative. 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, lengthy
consideration of the case by the first-instance court, remittals of
the case for fresh consideration, failure to schedule hearings
regularly, adjournments of hearings on account of the defendants'
absence) are attributable to the Government (see Golovko v.
Ukraine, no. 39161/02, §§ 61-65, 1 February
2007).
- 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, for example, Yakymenko v.
Ukraine, no. 19142/03, § 39, 29 May 2008; Pavlyulynets v.
Ukraine, no. 70767/01, § 53, 6 September 2005; and
Golovko v. Ukraine, cited above, § 65).
- In sum, having regard to the circumstances of the
instant case, the Court considers that the length of the proceedings
was excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a violation of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention of the unfairness and outcome of the proceedings. In his
initial submissions he also complained under Article 1 of Protocol
No. 1 of the violation of his property rights since he had not been
provided with the apartment. He also invoked Articles 8 and 17 of the
Convention in that respect. Finally, he
complained under Article 14 of the Convention about discrimination.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession, and in so far 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.
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 USD 661,380 (United States dollars) in respect of
pecuniary damage and USD 661,380 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 1,600 in respect of non-pecuniary damage.
B. Costs and expenses
42. The applicant, who was
not represented before the Court, claimed UAH 5,877.61 (Ukrainian
hryvnyas) (around EUR 634.20)
for the costs and expenses incurred before the domestic courts and
this Court. He produced the postal receipts for mailing
correspondence to the domestic authorities and this Court, receipts
for copying and for translation services. He also furnished receipts
evidencing payments made to the local bar and to a law firm in
respect of unspecified legal services and payments of court and other
fees.
- With
respect to the postal expenses, expenses for copying and translation
of the documents, the Government left the
matter to the Court's discretion. They contested the remainder of the
applicant's claims under this head.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Regard being had to the information in its
possession and to the above criteria, the Court awards the applicant
EUR 300 in respect of costs and expenses, plus any tax that may be
chargeable to the applicant, and dismisses the remainder of his
claims under this head.
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;
3 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 1,600 (one
thousand six hundred euros) in respect of non-pecuniary damage as
well as EUR 300 (three hundred euros) for costs and expenses, 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 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 16 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
