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FIFTH
SECTION
CASE OF MYKULYN v. UKRAINE
(Application
no. 35187/04)
JUDGMENT
STRASBOURG
18
February 2010
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 Mykulyn v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35187/04) 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 Ivan Mykhaylovych Mykulyn (“the
applicant”), on 20 September 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
12 January 2009 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 1941 and lives in the village of Stari
Bogorodchany, Ivano-Frankivsk Region, Ukraine.
- The
applicant and Mr L. co-owned a small estate which comprised a plot of
land, a house, a shed, a well and a fence (“the estate”).
On 4 January 1995 the applicant instituted proceedings against Mr L.
in the Bogorodchany Court seeking division of the estate.
- On
18 January 1995 Mr L. lodged a counterclaim seeking a larger share of
the estate. On the same day the Bogorodchany Court joined the
proceedings.
- On
12 April 1995, following an order of the Deputy President of the
Ivano-Frankivsk Regional Court,
the case was transferred to the Tismenitsky Court.
- On
16 June 1999 the latter allowed the applicant’s claim in part.
The applicant appealed in cassation. On 4 January 2000 the
Ivano-Frankivsk Regional Court upheld the judgment of 16 June 1999.
The judgment became final.
- On
14 July 2000, following an objection (protest) by the
President of the Ivano-Frankivsk Regional Court, the Presidium of the
Ivano-Frankivsk Regional Court quashed the judgment of 16 June 1999
and remitted the case to the Tismenitsky Court for fresh
consideration.
- On
29 June 2005, following an order of the Ivano-Frankivsk Regional
Court of Appeal, the case was transferred to the Galitsky Court.
- On
8 April 2008 the Galitsky Court partly allowed the applicant’s
and Mr L.’s claims.
- On
6 May 2008 the Galitsky Court gave an additional judgment, ordering
the applicant to reimburse legal expenses to Mr L.
- The
applicant appealed against these judgments.
- On
30 September 2008 the Ivano-Frankivsk Regional Court of Appeal upheld
the judgment of 8 April 2008 and the additional judgment of
6 May 2008.
- The
applicant appealed in cassation. On 10 March 2009 the Supreme Court
upheld the decisions of the lower courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE
PROCEEDINGS
- 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.
- 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. However, 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 10 March
2009. Thus, the overall duration of the
proceedings, excluding the period from 4 January 2000 to
14 July 2000 when the final judgment which was subsequently
quashed was in force, was about eleven years. The case was considered
by the 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
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 applicants and the relevant authorities and what
was at stake for the applicants 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 finds 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 6
§ 1 OF THE
CONVENTION ON ACCOUNT
OF THE OUTCOME OF THE PROCEEDINGS
- The
applicant finally complained under Article 6 § 1 of the
Convention that the court failed to allow his claims in full.
- Having regard to all the
material in its possession, and in so far as this complaint falls
within its competence, the Court finds that it does not disclose any
appearance of a violation of Article 6 § 1 of the Convention. It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with 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 10,000 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. Ruling on an equitable basis, it awards award him EUR 4,000
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 under it.
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
about 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 on account of the excessive length of
the proceedings;
- 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 4,000 (four thousand euros) plus any tax that may be
chargeable, 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;
(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 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
