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FIFTH
SECTION
CASE OF
TROFIMOVA AND ZYLKOVA v. UKRAINE
(Applications
nos. 35909/06 and 50559/06)
JUDGMENT
STRASBOURG
15
March 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Trofimova and Zylkova 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 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in applications
(nos. 35909/06 and 50559/06)
against Ukraine lodged
with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Russian
nationals, Ms Lyudmila Alekseyevna Trofimova (“the first
applicant”) and Ms Alla Alekseyevna Zylkova (“the second
applicant”), on 25 August and 10 September 2006, respectively.
2. The
applicants were represented by Mr A.A. Silantyev, a lawyer practising
in Pskov, the Russian
Federation. The Ukrainian Government (“the
Government”) were represented by their Agent, Ms V. Lutkovska,
of the Ministry of Justice.
- The
Russian Government, having been informed of their right to intervene
in the proceedings as a third party (Article 36 § 1 of the
Convention and Rule 44 of the Rules of Court), indicated that they
did not wish to exercise that right.
- On
22 September 2010 the
applications were communicated to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants, who are sisters, were born, respectively,
in 1956 and 1959 and live in Salekhard and
Salemal, the Russian Federation.
- In
August 2001, I.Z., the applicants’ sister, instituted
proceedings against them challenging a privatisation title issued by
the local government to a part of their father’s apartment
inherited under his will (the first applicant had bequeathed her part
of the will to the second applicant, who as a result shared the
apartment’s ownership with I.Z.).
- According
to the Government, the applicants did not attend two of the hearings
in the Feodossiyskyy Town Court (“the Feodossiyskyy Court”),
which dealt with the case, thus protracting the proceedings by two
months.
- On
18 April 2003 the Feodossiyskyy Court ruled in I.Z.’s favour.
The applicants appealed.
- On
10 July 2003 the Feodossiyskyy Court, ruling on the admissibility of
the appeal, set 4 August 2003 as a deadline for fixing procedural
formalities. On 8 August 2003 the court ruled to return the appeal to
the applicants as they had not rectified the indicated shortcomings.
- Between
August 2003 and April 2004, the Feodossiyskyy Court reconsidered the
admissibility of the applicants’ appeal several times and
refused to admit it for examination on merits as belated.
- On
6 April 2004 the Court of Appeal of the Autonomous Republic of Crimea
(“the Court of Appeal”) quashed the last inadmissibility
ruling of the Feodossiyskyy Court, stating that it was its own
competence to examine that issue.
- On
27 April 2004 the Court of Appeal granted an extension for
submission of the applicant’s appeal against the
decision of 18 April 2003, and admitted it for examination.
- On
24 November 2004 the Court of Appeal ruled in the applicants’
favour.
- On
23 December 2004 I.Z. appealed in cassation to the Supreme Court.
- On
21 April 2007 the Supreme Court transferred the case to the
Zaporizhya Regional Court of Appeal, in compliance with the
legislative measures of February 2007 on distribution of its backlog
of cassation appeals among appellate courts.
- On
9 November 2007 the Zaporizhya Regional Court of Appeal, acting as a
court of cassation, upheld the ruling of 24 November 2004.
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 factual
and legal background.
II. COMPLAINTS CONCERNING THE LENGTH OF PROCEEDINGS AND
THE LACK OF DOMESTIC REMEDIES IN THAT RESPECT
- The applicants complained that
the length of the proceedings had been unreasonable and that there
had not been effective domestic remedy in that regard. They relied on
Articles 6 § 1 and 13 of the Convention which read as follows in
the relevant parts:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal ...
Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 6 § 1 of the Convention
- The
Government contested the argument of the excessive length of the
proceedings, submitting that there had been no delays attributable to
the State. According to them, while the case was not complex, the
parties, and the applicants in particular, contributed to the length
of the proceedings by introducing additional claims and by failing to
attend the hearings. They also submitted that the State had not been
responsible for the period from 18 April 2003 until 24 November
2004, as the courts at that time had not dealt with determination of
rights and obligations in the sense of Article 6 (see paragraphs 8-13
above). Lastly, the Government acknowledged that the examination by
the courts of cassation had been somewhat protracted due to the high
case-load at the Supreme Court, but they pointed out that this
problem had been resolved by the legislative measures in February
2007 (see paragraph 15 above).
- The
applicants disagreed.
22. 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).
- The
period to be taken into consideration as to the proceedings in the
present case began in August 2001 and ended on 9 November 2007, thus
lasting around six years and three months for three levels of
jurisdiction.
- The
Court observes that the major delays in the proceedings were caused
by: firstly, the examination of the admissibility of the applicants’
appeal for around one year (see paragraphs 8-12 above); and,
secondly, the adjudication on the cassation appeal which took place
about three years after its submission (see paragraphs 14-16 above).
- As
regards the lengthy consideration of the admissibility of the appeal,
the Court notes that although this delay might have been prompted by
the fact that the applicants needed more time for case-processing as
non-Ukrainian residents, the responsibility for it may not be put
solely on the applicants. Thus, the Court does not lose sight of the
fact that the admissibility decision was reconsidered several times
(see paragraphs 10-12 above) and finally was given in the applicants’
favour. Accordingly, those remittals are to be viewed as an
indication of deficiencies in the proceedings for which the
applicants bear no responsibility (see, mutatis mutandis,
Wierciszewska v. Poland, no. 41431/98, § 46, 25 November
2003).
- The
Court next observes that, by the time the legislative amendments
referred to by the Government were introduced in February 2007, the
cassation appeal had been waiting for consideration for more than two
years.
- 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 the present case.
- 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 in respect of the
length of the proceedings.
2. Article 13 of the Convention
30. The
Court has frequently found violations of Article 13 of the
Convention, stating that the current Ukrainian legislation does not
provide a remedy for complaints concerning the length of proceedings
(see Efimenko v. Ukraine, no. 55870/00, 18 July 2006).
In the present case the Court finds no reason to depart from that
case-law.
31. There
has accordingly also been a breach of Article 13.
III. OTHER COMPLAINTS
32. The
applicants complained, relying on Articles 13, 14 and 17 of the
Convention, that they had been discriminated against and
restricted in their procedural rights on the ground of their Russian
nationality. The second applicant further complained, with reference
to Article 13 of the Convention and Article 1 of Protocol No. 1,
about the allegedly unfavourable decision of the first-instance
court.
- Having
carefully considered the applicants’ 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 (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 10,000 euros (EUR) and
the second 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 non-pecuniary damage alleged; it therefore rejects this
claim. On the other hand, the Court considers that the applicants
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards each applicant EUR 700 under that head.
B. Costs and expenses
- The
applicants indicated that some costs and
expenses had been incurred but did not submit a specified claim under
the Court’s procedure.
- The
Government did not express an opinion on the matter.
- The
Court considers it reasonable to award the sum of EUR 50 to each
applicant under this head.
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
1. Decides to join the applications;
- Declares the applicants’ complaints under
Articles 6 § 1 and 13 of the Convention concerning the length of
proceedings and the lack of effective remedies in that respect
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
that there has been a violation of Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay within three months each applicant
EUR 700 (seven hundred euros) in respect of non-pecuniary
damage and each applicant EUR 50 (fifty euros) in respect of 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;
6. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 15 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy
Registrar President
