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FIFTH
SECTION
CASE OF
SHPILKO v. UKRAINE
(Application
no. 11471/08)
JUDGMENT
STRASBOURG
19 April
2012
This
judgment is final. It may be subject to editorial revision.
In the case of Shpilko 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 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11471/08) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian
national, Mr Petr Ivanovich Shpilko (“the applicant”), on
11 February 2008.
- The
applicant was represented by Mr V.Y. Scherbachenko, a lawyer
practising in Berdyansk. The Ukrainian Government (“the
Government”) were represented by their Agent, Ms V. Lutkovska,
of the Ministry of Justice.
- On
18 October 2010 the
application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Berdyansk.
- On
5 March 2001 the applicant initiated a civil action in the Berdyansk
Town Court (“the Berdyansk Court”) against two private
persons and a local authority as regards his entitlement to a garage.
- On
15 May 2009, following two remittals of the case to the
first-instance court for fresh examination, the proceedings were
completed by a final ruling of the Supreme Court rejecting the
applicant’s request for leave to appeal in cassation. As a
result, his claim was rejected.
- In
the course of proceedings the hearings were adjourned for a total of
about seven months for the applicant’s failure to attend.
Overall, there were sixteen adjournments caused by the parties’
absence. Four of the hearings did not take place owing to the judge’s
leave or sickness.
THE LAW
I. COMPLAINTS CONCERNING THE LENGTH OF THE PROCEEDINGS AND
THE LACK OF EFFECTIVE DOMESTIC REMEDIES IN THAT RESPECT
- The applicant complained that the
length of the proceedings had been incompatible with the “reasonable
time” requirement and that he had no effective domestic remedy
in that regard. He relied on Articles 6 § 1 and 13 of the
Convention which read as follows:
Article 6 § 1
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal ...”
Article 13
“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.”
- The
Government contested that argument stating that there had been no
delays attributable to the State. They submitted that, while the
proceedings had not been complex, their length could be explained by
the number of the parties involved and their conduct.
- The
proceedings, which began on 5 March 2001 and ended on 15 May
2009, lasted about eight years and two months for three levels of
jurisdiction.
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
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 facts of the present case, the Court notes that the
proceedings concerned a property dispute which was not of any
particular complexity.
- The
Court acknowledges that the parties and in particular the applicant
somewhat contributed to the length of the proceedings. It however
considers that the parties’ behaviour alone cannot justify the
overall length of the proceedings.
- The
Court observes that there were two remittals of the case for fresh
consideration because of the appeal court’s disagreement with
the first instance court’s findings (see paragraph 6 above).
The Court reiterates 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, mutatis mutandis, Wierciszewska v.
Poland, no. 41431/98, § 46, 25 November
2003).
- 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.
2. Article 13 of the Convention
18. The
Court has also 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.
19. There
has accordingly been a breach of Article 13 too.
II. REMAINDER OF THE APPLICATION
- Relying
on Article 6 of the Convention, the applicant further complained
about the unfairness of the proceedings, not specifying his arguments
to that regard.
- In
the light of the materials in its possession, the Court finds that
the applicant’s complaint does 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 (a) 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.”
A. Damage
- The
applicant claimed EUR 70,000-100,000 in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage. His claim is however excessive. Ruling on an
equitable basis, the Court awards the applicant EUR 1,800 under
that head.
B. Costs and expenses
- The
applicant did not claim any costs and expenses; the Court therefore
makes no award.
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. Declares
the 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 the applicant, within three months,
EUR 1,800 (one thousand eight hundred euros), to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement, plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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 19 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger Deputy Registrar President
