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FIFTH
SECTION
CASE OF SUBOT v. UKRAINE
(Application
no. 38753/06)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Subot 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. 38753/06) 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 Yevgen Ivanovych Subot (“the applicant”),
on 14 September 2006.
- The
applicant was represented by Mr V. Torosh, a lawyer practising in
Rivne. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev.
- On
16 March 2010 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the court
proceedings in the applicant's case 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 1941 and lives in Rivne.
- In
July 1997 Mr Y. (a private individual) lodged a civil claim against
the applicant in a dispute over a house and a plot of land. The
applicant lodged a counter-claim against Mr Y., some other private
individuals and the local authorities seeking invalidation of several
contracts of gift of parts of the house at issue and declaration of
his title to premises he had built in that house.
- On
3 July 1998 the Rivne Court delivered a judgment in the case. On 30
July 1998 it renewed the applicant's procedural time-limits for
lodging his appeal in cassation against the above judgment and on
2 November 1998 the Rivne Regional Court of Appeal quashed that
judgment having remitted the case for fresh consideration.
- On
1 December 2005 the Rivne Court rejected the claim of Mr Y. as
unsubstantiated, allowed the applicant's counter-claim to the extent
that he requested invalidation of the contracts of gift and rejected,
as unsubstantiated, his claim concerning declaration of title to the
aforementioned premises.
- On
13 April 2006 the Rivne Court of Appeal partly amended the above
judgment having declared the applicant's title to part of the
household and the plot of land.
- On
6 May 2006 and 23 October 2008 respectively, the Supreme Court
rejected, as unsubstantiated, the requests of the applicant and the
local prosecutor (the latter acting in the applicant's interests) for
leave to appeal in cassation.
- In
the course of the proceedings the applicant twice amended or
specified his claim; five hearings were adjourned upon his or his
representative's requests or due to his or his representative's
failure to appear; nine hearings were adjourned due to both parties'
failure to appear. The above delays on the applicant's part
protracted the proceedings to approximately one and a half years.
Twenty three further hearings were adjourned due to the other party's
and third parties' failure to appear or upon their requests and
because of the absence or illness of a judge; fifteen hearings were
adjourned for unspecified reasons.
- Subsequently
the applicant unsuccessfully sought review of his case in the light
of the newly-discovered circumstances.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the length of the court proceedings had not been
reasonable. The Court considers that the complaint falls to be
examined solely under Article 6 § 1, which reads, in so far as
relevant, 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. In particular, they stated that
the proceedings ended on 6 May 2006.
- The
Court notes that the period to be taken into consideration began 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 23 October 2008, - and not on 6 May 2006 as
suggested by the Government, - as the applicant's civil rights were
finally determined when the Supreme Court refused to grant leave to
the appeal in cassation lodged by the local prosecutor in the
applicant's interests. The proceedings thus lasted for about eleven
years and one month and involved the courts of 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 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 6 and 10
above), cannot explain their overall duration. On the other hand, it
finds that the major delays were caused by the lengthy examination of
the case by the Rivne Court (see paragraphs 6-7 above) and by the
Supreme Court (see paragraphs 8-9 above), as well as by the repeated
adjournments of the hearings and recesses (see paragraph 10 above).
It concludes, therefore, that the main
responsibility for the lengthy duration of the proceedings rests 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.
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. 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 7,000
Ukrainian hryvnias (UAH) in respect of pecuniary damage and “no
less than 2,000-3,000 euros” (EUR) for non-pecuniary damage.
Alternatively, he stated that his pecuniary and non-pecuniary damage
amounted in total to “EUR 6,000-7,000”.
- 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 him EUR 3,000 under this head.
B. Costs and expenses
- The
applicant claimed UAH 11,000
and “UAH 2,000-3,000”
(but “no less than EUR 300-350”) respectively, for legal
assistance before the domestic courts and before the Court. He
provided a receipt for UAH 600
paid to his representative before the Court. The applicant also
claimed correspondence expenses incurred before the domestic courts
and before the Court and translation expenses before the Court. He
provided receipts for UAH 1,044.21
representing translation and correspondence expenses incurred by him
in the proceedings before the Court.
- The
Government contested the claim for legal costs and did not comment on
the claim for correspondence and translation expenses.
- 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. In the present
case, regard being had to the above criteria, the Court awards
the applicant EUR 160 for legal costs, translation and
correspondence expenses incurred by him in the proceedings before 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
of the Convention admissible;
- 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,
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage
and EUR 160 (one hundred sixty euros) in respect of 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 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
