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FIFTH
SECTION
CASE OF
KRAT v. UKRAINE
(Application
no. 30972/07)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Krat 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 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 30972/07) 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 Ganna Gnativna Krat (“the applicant”), on 26
May 2007.
- The
applicant was represented by Mr V. Krat, a lawyer practising in
Lutsk. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr Yuriy Zaytsev.
- On
5 January 2009 the
Court 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 1928 and lives in the
Rivne Region.
- On 28 March 2001 she lodged
a claim with the Mlyniv Court against a collective enterprise N. and
the Mlyniv State Administration seeking recovery of her share in N.
According to applicant, the share was
worth UAH 29,767 (EUR 2,680)
on 15 June 2009.
- On 10 April 2003 that court
scheduled the first hearing for 6 May 2003, and then the next
one for 21 January 2005.
- On 28 January 2005 the court
refused to examine the applicant's complaint owing to her repeated
failure to appear at the hearings. On 14 November 2005 the
applicant appealed against the refusal.
- On 21 March 2006 the Rivne
Regional Court of Appeal (“Court of Appeal”) having found
no indication that the applicant had been informed of the hearings
quashed the decision of 28 January 2005 and remitted the case to the
first instance court.
- On 1 September 2006 the Mlyniv
Court dismissed the applicant's claim as unsubstantiated. On
2 October and 12 December 2006 the applicant lodged
respectively an appeal and a rectified appeal.
- On
25 January 2007 the Court of Appeal upheld the judgment of
1 September 2006. This decision was not appealed against and
became final.
- According
to the Government, out of the nine court hearings scheduled in the
course of the proceedings (six in the first instance court, three in
the second instance court), three were adjourned following the
respondents' failure or inability to appear, one each was adjourned
due the presiding judge being on sick leave, both parties failure to
appear and the applicant's failure to appear. Also during the
proceedings, the applicant filed four procedural requests.
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
period to be taken into consideration began on 28 March
2001 and ended on 25 January 2007.
It thus lasted more than five years and nine months for two 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 applicant and the defendant were
responsible for the protracted length of the whole proceedings.
- 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).
- Turning
to the facts of the present case, the Court notes that the issue at
stake determined the applicant's property rights and was, therefore,
of some importance for her, but on the other hand, was not complex by
any account.
- With
regard to the applicant's conduct, the Court finds no substantial
delays that are attributable to her (see paragraph 11 above). In
respect of her procedural requests and appeals, the Court notes that
she merely exercised her procedural rights and that her procedural
steps did not considerably influence the overall length of the
proceedings.
- The
Court observes that the delays in the proceedings were mostly caused
by the first instance court's inaction: the first hearing was held
two years after the claim had been lodged and the court then needed
more than one year and eight months to schedule and hold the second
hearing.
- 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 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 of the
Convention.
II. OTHER COMPLAINTS
- The
applicant further complained that the first instance court had failed
to properly assess the evidence before them. She also complained that
the Court of Appeal left without consideration her arguments in
support of her appeal. She finally complained of a violation of her
property rights as a consequence of the protracted length of the
proceedings.
- 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 these complaints must be declared 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 UAH 59,147 in respect of pecuniary and
EUR 20,000 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, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards her EUR 1,600 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 2,000 in legal fees incurred before the
Court.
- The Government contested the claim.
- 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 were
reasonable as to quantum. The Court further observes that normally
the applicants are not called on to be legally represented in the
cases like the present one and therefore their legal expenses are not
reimbursed. In the instant case, the applicant furnished
a contract concluded with a lawyer containing no detailed
account of the services to be rendered. The
applicant did not provide any document evidencing payment in
compliance with the contract either. Yet, the lawyer concerned
filed observations and two inquiries to the Court on the applicant's
behalf. Regard being had to the Court's case-law and the information
in its possession, the Court awards the amount of EUR 100 for
costs and expenses (see mutatis mutandis, Romanchenko
v. Ukraine, no. 5596/03, § 38, 22 November
2005).
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 in respect of the 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 1,600 (one
thousand six hundred euros) in respect of non-pecuniary damage and
EUR 100 (one hundred euros) in respect of costs and expenses, plus
any tax that may be chargeable to the applicant, to be converted into
the national currency of the respondent State at the rate applicable
on 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 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
