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FIFTH
SECTION
CASE OF OLKHOVIKOVA v. UKRAINE
(Application
no. 36002/08)
JUDGMENT
STRASBOURG
25
November 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Olkhovikova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 2 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36002/08) 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 Lyubov Andriyivna
Olkhovikova (“the applicant”), on 19 July 2008.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
19 October 2009 the President of the Fifth Section decided to give
notice of the application to the Government. In
accordance with Protocol No. 14, the application was allocated
to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Kherson.
- In
1996-1997 the applicant’s neighbours, Mr and Mrs P., who lived
on the second floor of a two-storey dwelling house, reconstructed
their two flats. As a result of this, the applicant’s flat on
the first floor of the same house and the property in it were flooded
and damaged.
- On
10 September 1997 the applicant lodged a civil claim with the
Komsomolskyy Court against Mr and Mrs P., by which she asked it to
declare unlawful the reconstructions they had made, sought
elimination of obstacles in using the house and claimed damages.
Subsequently, the applicant lodged a similar claim against the local
authorities, by which she also sought refutation of information
published in a local newspaper concerning the applicant’s
alleged failure to pay for the utilities and claimed damages in this
respect.
- Between
9 September 1998 and 24 April 1999 the proceedings were suspended
pending the outcome of the applicant’s criminal complaint
concerning the matter, which was eventually dismissed as
unsubstantiated.
- On
28 August 2001 the court discontinued the proceedings in respect of
Mr P. because of his death.
- Following
two reconsiderations of the case, on 31 August 2005 the court allowed
in part the applicant’s claim, declared the reconstructions
made by Mrs P. unlawful, obliged her to repair the house and the
applicant’s flat and ordered Mrs P. to pay the applicant
certain amounts in compensation. The court rejected, as
unsubstantiated, the applicant’s claim against the local
authorities.
- On
12 December 2005 and 24 January 2008, respectively, the Kherson
Regional Court of Appeal and the Kirovograd Regional Court of Appeal
(the latter court acting as a court of cassation) upheld the above
judgment. On 14 April 2008 the applicant was served with a copy of
the decision of 24 January 2008.
- According
to the Government, in the course of the proceedings the applicant
amended or specified her claims on six occasions and on one occasion
she requested the courts to extend the time-limit for lodging her
appeal. Nineteen hearings were adjourned upon the applicant’s
request or due to her failure to attend them. Thirty-five hearings
were adjourned mainly due to the respondents’ or third parties’
failure to attend them and because of the absence of the judge. Three
expert examinations were ordered in the course of the proceedings and
lasted for about three months (in June-July 1999 and in May 2004).
- The
applicant disagreed that she had been responsible for the adjournment
of some of the hearings mentioned by the Government.
THE LAW
I. SCOPE OF THE CASE
- After the communication of the case to the respondent
Government, the applicant introduced a new complaint about the
non-enforcement of the judgment of 31 August 2005, without invoking
any provision of the Convention.
- In
the Court’s view, this complaint is not an elaboration of the
applicant’s original complaint about the length of the
proceedings, lodged approximately one year and eight months earlier,
on which the parties have commented (see Piryanik
v. Ukraine, no. 75788/01, § 20,
19 April 2005). The Court considers, therefore, that the scope of the
present case before it is limited to that original complaint. The
complaint about the non-enforcement of the judgment of 31
August 2005 will be dealt with in a separate application (no.
42191/10).
II. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS
- The
applicant complained under Article 6 § 1 of the Convention about
the length of the proceedings in her case. The above provision reads,
in so far as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within
reasonable time by [a] ... tribunal ...”
- The
Government stated that that there had been no violation of the
Convention in the present case.
- The
Court notes that, although the proceedings started on 10 September
1997, 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. They ended on 14 April 2008, when
the applicant received a copy of the final ruling (see
Widmann v. Austria,
no. 42032/98, § 29,
19 June 2003, and Gitskaylo v.
Ukraine, no. 17026/05, § 34,
14 February 2008). Between 9 September 1998 and 29 April 1999
the proceedings were formally suspended pending the outcome of the
applicant’s criminal complaint (see paragraph 7 above). In
total, the proceedings lasted, therefore, for about ten years before
three judicial instances.
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 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).
- Turning
to the circumstances of the case, the Court notes that the complexity
of the case and the conduct of the applicant,
who somewhat contributed to the length of the proceedings (see
paragraphs 11-12 above), cannot explain
their overall duration. On the other
hand, it finds that substantial delays, mainly caused by the lengthy
consideration of the applicant’s appeal in cassation and
repeated adjournment of the hearings, were attributable to the
domestic courts. It concludes,
therefore, that the main responsibility for the protracted length of
the proceedings rested with the State.
- 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, among many other
authorities, Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; and Moroz
and Others v. Ukraine, no. 36545/02,
§ 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. It
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 violation of Article 6 §
1 of the Convention.
III. REMAINING COMPLAINTS
- The
applicant also complained under Article 6 § 1 of the Convention
about the outcome of the proceedings and about a violation of Article
1 of Protocol No. 1 on account of such outcome, alleging, in
particular, that she had been unable to live in her flat damaged by
the reconstructions and flooding.
- 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.
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 relied on the Court’s discretion in awarding her
compensation for non-pecuniary damage. The Government also left the
matter for the Court.
- The
Court considers that the applicant must have sustained non pecuniary
damage because of the violation found. Making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the applicant 3,200 euros (EUR).
B. Costs and expenses
- The
applicant did not submit a claim under this head. Accordingly, the
Court 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 applicant’s complaint under Article 6 § 1 of the
Convention about the length of the proceedings admissible and the
remaining complaints 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 3,200
(three thousand two hundred 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.
Done in English, and notified in writing on 25 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
