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FIFTH
SECTION
CASE OF MARCHENKO v. UKRAINE
(Application
no. 24857/07)
JUDGMENT
STRASBOURG
10
February 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Marchenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Zdravka Kalaydjieva,
Julia Laffranque,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24857/07) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by three
Ukrainian nationals, Ms Lyudmyla Ivanivna Marchenko, Ms Svitlana
Viktorivna Marchenko (Matsevitska) and Ms Bozhena Viktorivna
Marchenko (“the applicants”), on 1 June 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 May 2009 the Court
decided to give notice of the complaint concerning the length of the
proceedings to the Government. In accordance to Protocol No. 14, the
application was allocated to a Committee of three Judges.
THE FACTS
- The
applicants were born in 1963, 1983 and 1988, respectively, and live
in Makariv. Ms Lyudmyla Marchenko is the mother of the other two
applicants.
- From
1987 onwards Ms Lyudmyla Marchenko lived in a house together with Mr
M., her husband, Mrs O.N., her mother in law, and Ms Svitlana
Marchenko. In 1988 Ms Bozhena Marchenko was born. In 1989 Mrs O.N.
acquired a property title over the said house. In 1992 Mr M. died. In
2000 Mrs O.N. concluded a deed of gift with Mr O.O. and transferred
the ownership over the house to him.
- In
August 2000 Ms Lyudmyla Marchenko instituted proceedings in the
Makariv Court against Mrs O.N. and Mr O.O. on her own behalf and on
behalf of the other two applicants seeking division of the house and
partial invalidation of the deed of gift.
- On 20 October 2000 the court ordered a forensic
examination and suspended the proceedings.
- Having received the results of the examination on 3 May
2001, the court resumed the proceedings on 28 May 2001.
- On 6 August 2001 the court found in part for the
applicants.
- On 31 August 2001 Mrs O.N. and Mr O.O. appealed.
- On 12 October and 14 December 2001 the Kyiv Regional
Court of Appeal returned the appeal to the first instance court due
to procedural shortcomings. On 6 November and 16 December 2001 the
first instance court allowed the appellants time to rectify their
appeal. Finally, on 13 February 2002 the first instance court
rejected that appeal without examination due to its procedural
shortcomings.
- On
21 May 2002 the court of appeal quashed that decision and remitted
the case to the first instance court for a decision on the
admissibility of the appeal lodged by Mrs O.N. and Mr O.O.
- Following
a decision on admissibility, on 1 July 2002 the Makariv Court sent
the appeal to the court of appeal for consideration.
- On
11 October 2002 the Kyiv Regional Court of Appeal quashed the
judgment of 6 August 2001 and remitted the case to the Makariv Court
for a fresh consideration.
- On
18 April 2003 the court suspended the proceedings in the case upon
the applicants' request.
- On
22 August 2003 the Makariv Court ordered resumption of the
proceedings.
- On
13 February 2004 the court found in the applicants' favour.
- On
10 March 2004 Mrs O.N. and Mr O.O. appealed. On 4 June 2004 the
court of appeal quashed the first instance court judgment and found
against the applicants.
- On
5 July 2004 the applicants appealed in cassation.
- On
9 November 2006 the Supreme Court rejected that appeal as
unsubstantiated.
- Out
of sixteen hearings in the case four were adjourned upon the
applicants' request or due to their failure to appear, four were
adjourned upon the respondents' requests or due to their failure to
appear, and three were adjourned due to the necessity to call a
witness or to examine proof or information.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS UNDER
ARTICLE 6 § 1 OF THE CONVENTION
- The applicants 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, 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...”
A. Admissibility
- The
Court notes that it 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 submitted that the proceedings had been complex because
they involved many parties and the courts had examined events which
had occurred more than thirty years ago. In the Government's view,
the applicants contributed to the protraction of the proceedings by
requesting suspension of the proceedings and their failure to appear
before the court. The Government contended that there had been no
significant delays attributable to the first instance court and the
court of appeal, while the length of the proceedings before the
Supreme Court had been justified by the latter's heavy workload. The
Government emphasized that the latter problem had been solved by
introducing, on 22 February 2007, amendments into relevant domestic
legislation.
- The
applicants 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 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
period to be taken into consideration began in August 2000 and ended
on 9 November 2006. It thus lasted for about six years and three
months for three levels of jurisdiction.
- At
the outset, the Court notes that the applicants contributed to the
protraction of the proceedings by failing to attend some of the
hearings, by requesting suspension of the proceedings and by lodging
appeals. However, the Court does not share the Government's view that
the primary responsibility for the delays in the proceedings rests
with the applicants.
- The
Court notes that the subject matter of the dispute was not complex as
it mainly concerned a property title over a house which could have
been established on the basis of the documentary evidence. The Court
also notes that the proceedings in question were of undeniable
importance for the applicants as they concerned ownership of the
house which was their main place of residence.
- The
Court observes that the case was twice remitted to a lower court for
a fresh consideration. In this regard the Court recalls that since
remittal is usually ordered because of errors committed by lower
courts, the repetition of such orders within one set of proceedings
discloses a serious deficiency in the judicial system (see
Wierciszewska v. Poland, no. 41431/98, §§ 46,
25 November 2003). The Court also observes that it took the domestic
authorities about eleven months to decide on admissibility of the
appeal lodged by Mrs O.N. and Mr O.O. (see §§ 10-14). The
Court further observes that the legislative amendments referred to by
the Government were introduced on 22 February 2007, after the
proceedings in the present case had ended.
- The
Court concludes that, given the undeniable importance of the
proceedings at issue for the applicants, the domestic authorities did
not act with a due expedition while examining their claims and the
overall duration of the proceedings exceeded what may be considered
“reasonable”. Accordingly, there has been a breach of
Article 6 § 1.
II. OTHER COMPLAINTS
- The
applicants complained under Articles 6 § 1 and 13 of the
Convention about the unfavourable outcome of the proceedings as the
domestic courts rejected their claims.
- In
the light of the materials in its possession, the Court finds that
the applicant's complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application must be declared
inadmissible as 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.”
- The
applicants lodged their claims for just satisfaction after the
prescribed time-limit. Therefore, the Court considers that there is
no call to award them any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention 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.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mirjana Lazarova Trajkovska
Deputy
Registrar President
