BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF MURDUGOVA v. UKRAINE
(Application
no. 28325/04)
JUDGMENT
STRASBOURG
2
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Murdugova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Karel
Jungwiert,
André Potocki, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28325/04) 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 Yevgeniya Ilyinichna Murdugova (“the
applicant”), on 22 July 2004.
- On
7 February 2007 the applicant’s daughter, Mrs Liliya
Aleksandrovna Sardaryan, who resides in Armenia, informed the
Registry that the applicant had died on 12 January 2007 and expressed
the wish to continue the proceedings before the Court on the
applicant’s behalf. She was represented by Mr V. Yavorskyy, a
lawyer practising in Kyiv, Ukraine.
- The
Ukrainian Government (“the Government”) were represented
by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev, of the Ministry
of Justice of Ukraine.
- On
3 April 2008 the
President of the Fifth Section decided to give notice of the
applicant’s complaint under Article 6 § 1 of the
Convention about the excessive length of proceedings to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
- On 25 January 2010 the Court further invited the
parties to submit additional observations as regards the applicant’s
complaint under Article 6 § 1 of the Convention concerning fair
hearing in the injunction proceedings. 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 1920 and lived in Kyiv, Ukraine, and in
Yerevan, Armenia.
- From
1947 to 1966 the applicant was married to M. Mrs Sardaryan was born
during the marriage. The applicant and M. divorced in 1966. On
11 August 1984 they remarried.
- On
12 January 2007 the applicant died and Mrs Sardaryan inherited her
rights and obligations.
- On
2 April 2007 M. died and Mrs Sardaryan inherited his rights and
obligations.
A. Divorce proceedings
- On 22 November 1996 M. instituted divorce proceedings
in the Moskovskiy District Court of Kyiv against the applicant.
- On 6 May 1997 M. amended his claims and requested a
declaration that the marriage of 1984 was void. Subsequently he
modified and withdrew his claims on several occasions.
- On 24 March 1998 the court declared the marriage void.
The applicant appealed.
- On 29 April 1998 the Kyiv City Court (since
2001 the Kyiv City Court of Appeal) quashed
this judgment on the ground that the lower court had failed to
examine the initial claims of M. and to establish crucial facts, and
remitted the case for fresh consideration.
- On 26 June 1998 the applicant submitted a
counterclaim, seeking a divorce.
- On 27 July 1998 the Moskovskiy District Court granted
the divorce petition in respect of M. and the applicant. M. appealed.
- On 9 September 1998 the Kyiv City Court quashed this
judgment on the lower court’s failure to assess properly the
evidence and remitted the case for fresh consideration.
- On several occasions the Kyiv City Court transferred
the case from one trial court to another for further examination: in
September 1998 to the Zaliznychniy District Court of Kyiv; in October
1999 to the Starokyivskiy District Court of Kyiv; and, eventually, on
20 January 2000 to the Kharkivskiy District Court of Kyiv (in 2001
this court was reorganised into the Dniprovskiy and Darnytskiy
District Courts of Kyiv).
- On 4 July 2001 the court found
for M. and declared the marriage with the applicant void. The
applicant appealed.
- On 4 December 2001 the Kyiv City Court of Appeal
quashed this judgment and remitted the case for fresh consideration
to the Dniprovskiy District Court of Kyiv. It noted, inter alia,
that although the trial court had examined the case in the
applicant’s absence, it had failed to take into account her
written pleadings, which were important for a fair examination. M.
appealed in cassation against this decision but on 7 March 2002 the
Supreme Court of Ukraine dismissed his appeal.
- On 26 April 2002 the Dniprovskiy District Court
resumed the proceedings.
- On 23 May 2003 the court granted divorce to M. and the
applicant. The hearing was held in M.’s absence. M. appealed.
- On 18 November 2003 the Kyiv City Court of Appeal
quashed the judgment on the ground that the trial court had failed to
examine whether the absence of M. was for good reasons or not and
remitted the case for fresh consideration.
- On 12 December 2003 the Dniprovskiy District Court
resumed the proceedings.
- On 17 March 2005 the court rejected M.’s claim
to have the marriage declared void and dismissed the applicant’s
claim because she had failed to attend the hearing.
- On 28 July 2005 and 21 May 2007 respectively, the Kyiv
City Court of Appeal and the Donetsk Regional Court of Appeal, acting
as a court of cassation, dismissed M.’s appeals.
- A substantial number of the approximately seventy
hearings in this set of proceedings were adjourned following the
parties’ requests, referring to their poor state of health or
their failure to appear before the court. In her requests to adjourn
the hearings the applicant, who, it appears from the available
documents, was represented, requested the trial courts either not to
hold hearings in her absence or to stay the proceedings till her
recovery. The trial courts stayed the proceedings several times
pending the parties’ recovery. The courts further warned the
parties that they would examine the case in the respective party’s
absence; on one occasion the court fined the applicant for
non-attendance, but this decision was later quashed upon the
applicant’s appeal.
- According to the applicant, she did not appeal against
the judgment of 17 March 2005 but in August 2005 she instituted new
and separate divorce proceedings in the Golosiyivsky District Court
of Kyiv. On 14 March 2006 the court divorced the applicant and
M.
B. Proceedings on the property rights to the apartment
- In 1986 the applicant’s family was granted
tenancy of a publicly owned two-roomed apartment. On 28 November
1991 M., with the applicant’s consent, bought the apartment
from the local municipal authority.
- On 25 November 1996 the applicant instituted
proceedings in the Moskovskiy District Court of Kyiv against M.,
seeking to declare the above sale contract void.
- On 15 November 1996 the court attached the apartment
in question.
- In March 1997 the applicant amended her claims,
claiming ownership of half of the apartment.
- In April 1997 M. forcibly evicted the applicant from
the apartment. The applicant moved to Yerevan, Armenia, and resided
there until her death.
- On 29 May 1997 the Moskovskiy District Court stayed
the proceedings pending determination of the divorce proceedings.
- In the period between 22 October 1999 and January 2000
the case was transferred to the Starokyivskiy and Kharkivskiy
District Courts of Kyiv, following the relevant decisions by the Kyiv
City Court.
- On 31 January 2000 the Kharkivskiy District Court of
Kyiv, having taken over the case, decided to stay the proceedings
pending determination of the divorce proceedings.
- On 29 August 2002 the Golosiyivskiy District Court of
Kyiv (before October 2001 the Moskovskiy District Court of Kyiv)
lifted the attachment order on this apartment as “the main
dispute had been resolved”. According to the applicant, neither
she nor her representative were present at this hearing. She also
contended that Judge U., the president of the court, who
rendered this ruling, had intervened unlawfully in the proceedings as
at that moment they were pending before the Darnytskiy District Court
of Kyiv (formerly the Kharkivskiy District Court of Kyiv). The
applicant further pointed out that in the ruling of 29 August 2002
Judge U. had referred to a judgment which did not exist.
- On 20 September 2002 M. made a gift of the apartment
to K.N., a third person. On 21 February 2003 the latter sold the
apartment to K.R. The applicant alleged that she only became aware of
the ruling of 29 August 2002 in April 2003, when the apartment
had been already sold.
- On 3 April 2003 the Darnytskiy District Court
(formerly the Kharkivskiy District Court of Kyiv, see paragraph 17
in fine) made an attachment order in respect of the apartment
in question. On 21 June 2004 the Kyiv City Court of Appeal amended
the order so that it applied to half of the apartment only. According
to the applicant, neither she nor her representative was summoned to
the last-mentioned hearing. On 21 March 2006 the Supreme Court of
Ukraine upheld the ruling of 21 June 2004.
- On 7 May 2003 the court rejected the applicant’s
request to renew her the time-limit for appeal against the decision
of 29 August 2002. There is no evidence that the decision of 7 May
2003 has been ever sent to the applicant. According to the applicant,
she learned about it on 30 July 2004 at the latest from the letter of
the Kyiv City Court of Appeal. There is no evidence that the
applicant has ever tried to obtain a copy of the decision of 7 May
2003 and to appeal against it.
- On 17 February 2004 the Darnytskiy District Court
inquired of the Dniprovskiy District Court as to the outcome of the
divorce proceedings.
- On 26 June 2006 the Darnytskiy District Court resumed
the proceedings.
- On 12 September 2006 the applicant submitted an
additional claim to declare the gift contract of 20 September 2002
and the sale contract of 21 February 2003 (see paragraph 37
above) void.
- On 21 September 2006 the case was transferred for
examination to the Golosiyivskiy District Court. On 18 January 2007
the Kyiv City Court of Appeal quashed this decision on an appeal by
the applicant and remitted the case back to the Darnytskiy District
Court.
- On 16 June 2007, both parties, the applicant and M.,
having died, the Darnytskiy District Court stayed the proceedings
until the identity of the parties’ heirs had been determined.
- On 10 October 2007 Mrs Sardaryan joined the
proceedings as the sole heir to both parties. She also modified the
claims, seeking to have the contracts of 20 September 2002 and 21
February 2003 declared void and to have the court recognise that she
owned the apartment outright. In this regard she indicated K.N. and
K.R. as defendants.
- On 5 November 2007 the proceedings were resumed.
- On 26 June 2008 the Darnytskiy District Court found
for Mrs Sardaryan. On 28 October 2008 the Kyiv City Court of
Appeal upheld this decision. On 15 September 2010 the Supreme Court
of Ukraine quashed these decisions and remitted the case for a fresh
consideration to the first instance court. The proceedings are
apparently still pending.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS
- The
applicant complained that the length of the divorce and in rem
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 ...”
A. Admissibility
- The Government submitted that Mrs Sardaryan could not
claim to be a victim within the meaning of Article 34 of the
Convention and invited the Court to strike the application out of its
list of cases. In particular, they pleaded that no “civil
rights and obligations” of Mrs Sardaryan had been determined in
the divorce and in rem proceedings between her parents.
- The Court notes that the applicant died on 12 January
2007, after lodging her application under Article 34 of the
Convention in July 2004. It reiterates that in various cases in which
an applicant has died in the course of the Convention proceedings it
took into account the statements of the applicant’s heirs or of
close members of his family expressing their wish to pursue the
application (see, among other authorities, Kalló v.
Hungary, no. 30081/02, §§ 24-25, 11 April 2006).
The Court considers that Mrs Sardaryan, who inherited from the
applicant, continued her proceedings on the national level and stated
her intention of continuing the proceedings before this Court, has a
legitimate interest in obtaining a finding that there has been a
breach of the applicant’s rights.
- 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
1. Period to be considered
- The
Government contended that the in rem proceedings to which the
applicant was party ended on 12 January 2007 when she died. The
ensuing proceedings were, in their view, out of the scope of the
application as, once she had inherited from and replaced the
applicant in those proceedings, Mrs Sardaryan modified the
applicant’s claims and pursued her own legal interests.
- The
Court observes that the periods to be taken into consideration began
only 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.
- It
further observes that the divorce proceedings ended on 21 May 2007
and thus lasted nine years and eight months at three levels of
jurisdiction.
- As
to the dies ad quem
in the proceedings on the property right
over the disputed apartment, the Court notes that after M.’s
death Mrs Sardaryan apparently has dropped the applicant’s
property rights claim for ½ of the apartment being a single
heir of both parties.
- However,
in October 2006 within these proceedings the applicant also lodged an
additional claim (see paragraph 42 above) which was maintained by Mrs
Sardaryan. It follows that the scope of the applicant’s
complaint concerning the in rem proceedings is not limited to
the events only prior to the date of the applicant’s or M.’s
death. Accordingly, in so far as the impugned proceedings have been
never terminated and are apparently still pending, they have lasted
so far fourteen years and four month.
2. Reasonableness of the length of proceedings
(a) Submissions by the parties
- The
Government admitted that the matters before the domestic courts were
not complex per se but were complicated as a result of the
parties’ new claims and their modifications. The Government
further averred that the parties’ behaviour (for example,
non-attendance at the court hearings and lodging of appeals against
the court decisions) in the course of the impugned proceedings had
caused considerable delays and the respondent State could not be
blamed for them. The Government concluded that there was no violation
of the “reasonable time” requirement under Article 6
§ 1 of the Convention.
- The
applicant disagreed.
(b) General principles
- 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). In cases relating to civil status, what is at
stake for the applicant is also a relevant consideration, and special
diligence is required in view of the possible consequences which the
excessive length of proceedings may have, notably on enjoyment of the
right to respect for family life (see Laino v. Italy [GC],
no. 33158/96, § 18, ECHR 1999-I).
(c) Application of these principles to the
present case
- Turning
to the present case, the Court observes that neither set of
proceedings was complicated, either on points of law or matters of
fact. It agrees with the Government that new claims and their
modifications somewhat complicated the cases, but this cannot justify
the whole length of proceedings.
- As
to the conduct of the applicant, the Court notes that she caused
significant delays in the divorce proceedings by failing to attend
hearings for, inter alia, health reasons, and even when
represented before the courts she requested the latter not to hold
hearings in her absence (see paragraph 26 above). It
accepts that these delays cannot be imputed to the respondent State.
The same can be held with respect to the delays caused by M.
(i) Divorce proceedings
- Nevertheless,
these delays cannot be wholly removed from the authorities’
responsibility either. In the divorce case the domestic courts faced
opposing claims by aged persons whose state of health was very poor.
In the Court’s view the courts were called on to dispose of
these claims with particular expedition. The domestic courts instead
waited in vain for the parties’ recovery, staying the
proceedings and causing unnecessary delays. As to the applicant’s
requests to hold the hearing in her presence only, the
Court would reiterate that it is the role of the domestic courts to
manage their proceedings so that they are expeditious and effective
(see, for example, Scordino v. Italy
(no. 1), [GC], no. 36813/97, §
183, ECHR 2006 ...).
- Furthermore,
the case was remitted for fresh examination four times, on the ground
that the trial court had failed to take into account some pieces of
evidence or to comply with rules of procedure in that straightforward
case (see paragraphs 13, 16, 19 and 22 above). Although the Court is
not in a position to analyse the juridical quality of the case-law of
the domestic courts, it considers that, since the remittal of cases
for re-examination is usually ordered as a result 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).
- To
this end the Court adds that this case was shifted from one trial
court to another several times (see paragraph 17 above) and that
caused further delays in so far as every new judge needed additional
time to get acquainted with the case file (see, mutatis mutandis,
Moiseyev v. Russia, no. 62936/00, § 191, 9 October
2008). Given that no explanation was furnished by the Government as
to why those transfers were necessary, these delays cannot be
considered reasonable. In the light of this and having regard to the
short period of time needed to grant the applicant and M. a divorce
in a separate set of proceedings (see paragraph 27 above), the Court
finds that the domestic authorities fell short of their obligation to
dispose of the divorce case with particular expedition.
(ii) Proceedings on the property rights to
the apartment
- As
to the in rem proceedings, assuming that the outcome of the
divorce case was crucial for examination of the property claims, the
Court notes that their length was the direct result of the delays
caused in the divorce proceedings as set out above. In this regard
the Court refers to the stay of the in rem proceedings between
May 1997 and June 2006 pending the determination of the divorce
proceedings. Additionally the Court emphasises the transfers of the
case from one trial court to another (see paragraphs 34 and 43
above) which were also not explained by the Government.
- The
Court finally notes that, although the present subject of the dispute
considerably differs from the initial one, these new claims were
indirectly caused by the lengthy examination of the initial claim
since the applicant was forced to lodge additional claims after the
apartment in question was gifted and then sold to third parties while
property rights proceedings were still pending. Moreover, these
proceedings are still pending allegedly before the first instance
court. In such circumstances the Court finds that the length of these
proceedings exceeded what can be considered reasonable.
(d) Overall conclusion
- 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, and Efimenko v. Ukraine,
no. 55870/00, § 58, 18 July 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. THE COMPLAINT ABOUT THE FAIRNESS OF THE INJUNCTION
PROCEEDINGS
- The applicant complained under Article 6 § 1 of
the Convention that Judge U., who had lifted the attachment on 29
August 2002, had not been impartial, had had no power to deal with
the matter, and that the principle of equality of arms had been
infringed.
Admissibility
- The
Government stated that the applicant’s complaint had been
submitted outside the six-months’ time-limit since the
applicant had learned about the decision of 29 August 2002 in April
2003 but had lodged her application in July 2004 only. Moreover,
neither the applicant, nor her representative appealed against the
decision of 7 May 2003 by which the applicant’s request to
renew her the time-limit for lodging an appeal against the decision
of 29 August 2002 was rejected.
- The
applicant stated that she had learned about the decision of 7 May
2003 in July 2004 only and since she did not have its copy, it was
impossible for her to lodge an appeal against this decision.
- The
Court notes that the proceedings in question concerned lifting of
restraint on alienation of apartment while the applicant claimed
property rights for half of this apartment. Although the “civil”
nature of the right at stake (i.e. property right over apartment) is
apparent, whether the interim measure in question was capable of
effectively determining that right is less clear-cut (see, Micallef
v. Malta [GC], no. 17056/06, §§ 84-85, 15 October
2009).
- The
Court, however, will not examine the issue of applicability of
Article 6 of the Convention to the proceedings in question since the
applicant’s complaint is in any event inadmissible for the
following reasons.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies which are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The Court notes that the applicant
became aware of the decision of 29 August 2002 in April 2003. She
requested to renew her the time-limit for an appeal but was refused
on 7 May 2003. The applicant learned about this refusal in July 2004.
However, she has never requested to be provided with a copy of the
decision of 7 May 2003 and has never appealed against it.
- The
Court recalls that it is incumbent on the interested party to display
special diligence in the defence of his/her interests and to take the
necessary steps to apprise himself/herself of the developments in the
proceedings (see, among other authorities, Teuschler v. Germany
(dec.), no. 47636/99, 4 October 2001; Trukh v. Ukraine
(dec.), no. 50966/99, 14 October 2003; and Aleksandr
Shevchenko v. Ukraine, no. 8371/02, § 27, 26 April 2007).
Although by July 2004 the domestic court has renewed the restrain on
alienation of the disputed apartment, the decision of 29 August 2002
remained valid and neither of the violations of Article 6 § 1 of
the Convention, alleged by the applicant before the Court, have been
addressed within the national legal system. Therefore, the Court
considers that by failing to appeal against the decision of 7 May
2003 the applicant did not exhaust the effective domestic remedies
available to her.
- The
Court thus declares the applicant’s complaint about unfairness
of the injunction proceedings inadmissible under Article 35 §§
1 and 4 of the Convention.
III. OTHER COMPLAINTS
- The
applicant also relied on Article 1 of Protocol No. 1 in respect of
lifting of restraint on alienation of apartment on 29 August 2002.
Additionally the applicant complained under Article 6 § 1 of the
Convention that neither she nor her representative had been summoned
to the hearing on 21 June 2004 (see paragraph 38 above).
- Having
carefully considered the applicant’s submissions in the light
of all the material in its possession, the Court finds that, in so
far as the matters complained of are within its competence, 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 claimed 2,175 euros (EUR) in respect of pecuniary damage
and EUR 8,000 in respect of non-pecuniary damage. The first-mentioned
claim consisted of legal and transport (flights between Yerevan and
Kyiv) expenses the applicant had incurred in the course of the
domestic proceedings.
- 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, it considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
her EUR 4,500 under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore 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 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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 4,500 (four thousand five hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into Ukrainian hryvnas 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Mark Villiger
Deputy Registrar President
