[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
MANGADASH AND OTHERS v. UKRAINE
(Applications
nos. 14018/08, 14835/08 and 31423/08)
JUDGMENT
STRASBOURG
14
June 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Mangadash and Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
cases originated in three
applications (nos. 14018/08, 14835/08 and 31423/08)
against Ukraine lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by Ukrainian nationals, Ms Nina
Ivanovna Mangadash (“the first applicant”), Ms
Zinaida Vladimirovna Pavlenko and Mr Viktor Vladimirovich Shabanov
(“the second and
the third applicants”), and Mr
Yevgeniy Vasylyovych Aleksandrov (“the fourth applicant”),
on 6 March,
12 March and 14 June 2008,
respectively.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- Notice
of the applications was given to the Government by the decisions of
the President of the Fifth Section of 2
September 2010, 12 July
and 25 August 2010, respectively.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1939, 1937, 1940 and 1949, respectively. The
first applicant lives in the village of Konstantynopil, the second
and the third applicants in Melitopol and the fourth applicant in
Ivano-Frankivsk
I. proceedings instituted by the first applicant
- On
14 February 2000 the first applicant initiated a land-related dispute
with an agricultural enterprise.
- Following
two remittals of the case by the appellate court to the
first instance court for fresh examination, on 15 April 2004 the
Velyka Novosilka Town Court found against the first applicant.
- On
1 July 2004 and 5 September 2007 the Donetsk Regional Court of Appeal
and the Kyiv City Court of Appeal (sitting as a court of cassation),
respectively, upheld the aforementioned judgment.
- There
were eight adjournments in the proceedings due to the defendant
company’s failure to appear for hearings. The first applicant’s
absence caused one such adjournment.
II. proceedings instituted by the SECOND AND THE THIRD
applicantS
- On
1 December 1995 the second and the third applicants initiated a land
dispute against their neighbour.
- On
20 November 2007 the proceedings, which had taken place before the
courts of three levels of jurisdiction, were completed by a final
ruling of the Odessa Regional Court of Appeal (sitting as a cassation
court) finding against the applicants.
- In
the course of the proceedings, there was one remittal of the case
from the appellate court to the first-instance court for fresh
consideration. The courts also ordered five forensic technical expert
examinations. Furthermore, there were nine adjournments in the
proceedings due to the parties’ failure to appear for hearings.
III. proceedings instituted by the FOURTH applicant
- On
13 November 2000 the fourth applicant instituted a civil dispute
against his neighbour seeking acknowledgement of his entitlement to a
land plot and a permit to pursue certain construction works.
Subsequently, the local authorities were involved in the proceedings
as defendants. The fourth applicant’s neighbour, in turn,
brought a counterclaim.
- Following
the examination of the case by the courts of two levels of
jurisdiction which had allowed the fourth applicant’s claim in
part, on 21 January 2008 the Supreme Court quashed the lower
courts’ decisions for the most part and remitted the case back
to the first-instance court for fresh examination.
- According
to the parties, the proceedings remain pending before the
first-instance court.
- In
the course of the proceedings, the applicant amended his claims
several times. The courts also ordered four forensic technical expert
examinations at the defendants’ requests.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common legal
background (see Petrov and Others v. Ukraine, nos. 44654/06,
32525/08 and 35537/08, § 31, 15 November 2011).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
- The
applicants complained that the length of the proceedings in their
cases 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. They stated that the applicants
had themselves protracted the proceedings due to adjournments and
various procedural requests. While the Government admitted that the
proceedings in the cases of the first and the fourth applicants had
not been complex, they considered that the dispute was complicated in
the case of the second and the third applicants, as witnessed by the
quantity of the expert examinations (see paragraphs 11 and 15 above).
They also noted that all the proceedings at hand had been somewhat
protracted because of the excessive case-load of the Supreme Court,
that problem having been eventually resolved by legislative measures
of February 2007, under which the backlog of cassation appeals was
distributed among courts of appeal.
- The
period to be taken into consideration as to the proceedings brought
by the first applicant began on 14 February 2000 and ended on
5 September 2007, thus lasting around seven years and seven
months. The period to be taken into consideration as to the second
and the third applicants began on 11 September 1997, when the
recognition by Ukraine of the right of individual petition took
effect, and ended on 20 November 2007, thus lasting more than
ten years. As regards the fourth applicant’s case, the
consideration period began on 13 November 2000 and, according to the
information in the case file, has not been completed so far, thus
lasting more than twelve years. All the proceedings in question went
through three levels of jurisdiction.
A. Admissibility
- The
Government argued that application no. 14835/08 was incompatible
ratione temporis insofar as it concerned events prior to the
entry into force of the Convention in respect of Ukraine on 11
September 1997.
- The
Court notes that it has already determined 11 September 1997 as the
dies a quo in the present case (see paragraph 19 above). In
assessing the reasonableness of the time that elapsed after that
date, it will take however account of the state of the proceedings at
the time.
- The
Court further notes that these parts of the applications are neither
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention nor inadmissible on any other grounds. They should
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).
- Turning
to the facts of the present case, the Court notes that the
proceedings concerned land disputes in which no particular complexity
is discernable. As regards the the first applicant’s
case, two remittals are to be viewed as an indication of
deficiencies in the proceedings for which the applicant bears no
responsibility (see, mutatis mutandis, Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003). Such
an indication appears even stronger in the case of the fourth
applicant, where the Supreme Court sent the case back to the
first-instance court after it had already been examined by the courts
of two levels of jurisdiction for almost eight years.
- As
regards the proceedings brought by the second, the
third and the fourth applicants, even though the examination of their
cases might have been complicated by several expert examinations, the
Court recalls that it is within the competence of a court to
decide whether or not to seek outside advice (see Dulskiy v.
Ukraine, no. 61679/00, § 71, 1 June 2006).
- As
to the applicants’ conduct, the Court considers that it alone
cannot justify the overall length of the proceedings.
- The
justification for the delay before the courts of cassation in all
three applications’ proceedings, provided by the Government
(see paragraph 18 above), may not be accepted, as by the time
the impugned legislative amendments were introduced the applicants’
cassation appeals had been waiting for consideration for more than
two and a half years in the case of the first applicant, about one
and a half year for the second and the third applicants, and more
than two years in the case of the fourth applicant.
- In
the light of the foregoing, the Court concludes that the State
authorities bear the primary responsibility for the excessive length
of the proceedings in question.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the ones in the present
cases (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 cases 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.
III. OTHER COMPLAINTS
- Relying
on Article 6 of the Convention, the applicants further complained
about the alleged unfairness and outcome of the proceedings. The
fourth applicant also complained that his rights under Article 1 of
Protocol No. 1 had been infringed.
- Having
carefully examined the applicants’ remaining complaints 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 and must be dismissed pursuant to
Article 35 §§ 3 (a) 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
first applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage. The second and the third applicants claimed jointly 100,000
Ukrainian hryvnias (UAH) under that heading. The fourth applicant
claimed UAH 475,165
in respect of pecuniary and UAH 950,330
in respect of non-pecuniary damage.
- The
Government contested these claims, apart from the fourth applicant’s
claim in respect of non-pecuniary damage which was left uncommented.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects these claims.
The Court considers, however, that the applicants must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards the
first applicant EUR 1,300, the second and the third applicants,
jointly, EUR 2,400, and the fourth applicant EUR 3,000 under that
head.
B. Costs and expenses
- The
first applicant did not claim any costs and
expenses; the Court therefore makes no award.
- The
second and the third applicants claimed an unspecified amount for the
costs and expenses incurred before the domestic courts and UAH 200
for those incurred before the Court. The fourth applicant
claimed UAH 995,13
as reimbursement of costs and expenses before the national courts
including UAH 763,90
as legal fees, and further UAH 266,48
as fees of his legal representation in the proceedings before the
Court.
- Apart
from the fourth applicant’s claim for legal fees which was left
for the Court’s discretion, the Government objected to the
above claims noting that they had no relation to the cases before the
Court.
- Regard
being had to the documents in its possession and to its case-law, the
Court rejects the claims for costs and expenses in the domestic
proceedings and considers it reasonable to award, for the proceedings
before the Court, the sum of EUR 19 to the second and the third
applicants jointly, and EUR 24 to the fourth applicant.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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
1. Decides to join the applications;
2. Declares the applicants’ complaints under
Article 6 § 1 of the Convention about the length of the
proceedings admissible and the remaining complaints inadmissible;
3. Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
4. Holds
(a) that
the respondent State is to pay the applicants, within three months,
the following amounts:
- to
Ms Mangadash EUR 1,300 (one thousand three
hundred euros) for non-pecuniary damage;
- to
Ms Pavlenko and Mr Shabanov EUR 2,400 (two
thousand four hundred euros) for non-pecuniary damage and EUR 19
(nineteen euros) for costs and expenses,
jointly;
- to
Mr Aleksandrov
EUR 3,000 (three thousand euros) for non-pecuniary
damage and EUR 24 (twenty four euros) for costs
and expenses,
plus
any tax that may be chargeable to the applicants, 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;
5. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 14 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
