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FIFTH
SECTION
CASE OF BORSHCHEVSKAYA v. UKRAINE
(Application
no. 9962/05)
JUDGMENT
STRASBOURG
25 October
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It
may be subject to editorial revision.
In the case of Borshchevskaya v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mrs R.
Jaeger,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9962/05) 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, Ms Svetlana Semyonovna Borshchevskaya (“the
applicant”), on 23 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
2 November 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Novomoskovsk. In the early
nineties the applicant worked in Russia, however, since 1992 she had
a Ukrainian citizenship stamp in her U.S.S.R. passport, which she
exchanged for a Ukrainian passport in 1999.
- In 1995 the applicant left Russia, moved into her
Novomoskovsk house purchased in 1987, and sought to privatize an
adjacent plot of land. In September 1996, having received a
privatization certificate, she found out that part of the plot she
considered to be entitled to, had been privatized by her neighbour,
Mrs N.P.
- On
10 February 1997 the applicant instituted civil proceedings against
Mrs N.P., seeking partial annulment of her privatization
documents.
- On
19 March 1998 the Novomoskovsk Court (Новомосковський
міський суд
Дніпропетровської
області)
dismissed her claims as lodged outside the applicable statute
of limitation. The applicant appealed.
- On
23 April 1998 the Dnipropetrovsk Regional Court (“the
Regional Court”; Дніпропетровський
обласний суд)
quashed this judgment and remitted the case for a fresh
consideration. It found that the Novomoskovsk Court had
insufficiently analysed the circumstances concerning the application
of the statute of limitation. It further instructed the court to
examine particular documentary and other evidence and to summon the
City Council's Executive Committee (Виконавчий
комітет Новомосковської
міської ради),
which had issued the privatization documents.
- In
October 1998 Mrs N.P. lodged a counter-claim, seeking to annul the
applicant's privatization certificate. She maintained that the
applicant had not received Ukrainian citizenship until 1999 and so,
under the applicable law, had not been entitled to privatize land
before that time.
- On
18 January 2001 the Novomoskovsk Court accepted Mrs N.P.'s
argument, having dismissed all of the applicant's claims and having
allowed all those of Mrs N.P. The applicant appealed.
- On
5 March 2001 the Regional Court quashed this judgment. It
found that the Novomoskovsk Court had misinterpreted applicable
substantive law and breached a number of procedural requirements.
Particularly, it had failed to examine a number of relevant documents
and witnesses, as well as to substantiate the dismissal of the
applicant's claims against Mrs N.P.
- On
4 January and 12 November 2003 the applicant amended her claims.
- On
15 July 2004 the Novomoskovsk Court partly allowed both
parties' claims. In particular, it ordered the Executive Committee to
change the planning scheme and record each party's ownership over the
land, which she actually used. The applicant appealed.
- On
9 December 2004 the Regional Court quashed this judgment,
having found that the Novomoskovsk Court had exceeded its procedural
authority in deciding to design a planning scheme, which power was
vested in the municipal authorities. Furthermore, the court still had
failed to examine certain of the documents of relevance to the
proceedings. The applicant appealed in cassation.
- As
of June 2006 the proceedings were pending before the cassation court.
- In
the course of the proceedings, the first-instance court scheduled
some 33 hearings. Most of them were scheduled with intervals ranging
from several weeks to five months. On two occasions the intervals
between the hearings exceeded six and nine months respectively
(28 January 1999 – 12 August 1999 and
3 April 2002 – 21 January 2003). Thirteen
hearings were adjourned on account of the absences of municipal
authorities summoned into the proceedings. Twice the hearings were
adjourned on account of the applicant's failure to appear.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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 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.
- The
proceedings started in February 1997. However, the period to be taken
into consideration began only on 11 September 1997, when
the recognition by Ukraine of the right of individual petition took
effect. Nevertheless, in assessing the reasonableness of the time
that elapsed after that date, account must be taken of the state of
proceedings at the time. On 9 June 2006 the period in
question had not yet ended. It had already lasted on that date eight
years and nine months, during which period the merits of the
applicant's claims had been considered by two levels of jurisdiction.
A. Admissibility
- 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
- 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 Court finds that the complexity of the case and
the applicant's conduct alone cannot explain the overall length of
the proceedings and finds that a number of delays (remittals of the
case for a fresh consideration, two prolonged periods between
scheduling the hearings and failures of the municipal authorities to
appear) are attributable to the Government.
- 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 (see e.g., Frydlender, cited above; Svetlana
Naumenko v. Ukraine, no. 41984/98,
9 November 2004 and Karnaushenko v. Ukraine,
no. 23853/02, 30 November 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that she had no effective remedies for
her complaint concerning the excessive length of the proceedings. She
relied on Article 13 of the Convention.
- The
Government considered that Article 13 was not applicable to the
circumstances of the case as the applicant had not made out an
arguable claim under Article 6 § 1.
- The
Court refers to its findings in paragraphs 20 and 25 above and notes
that this complaint is linked to the applicant's complaint under
Article 6 § 1. It finds that this complaint must
likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). The Government did not name any such remedy available to
the applicant.
- The
Court considers that in the present case there has been a violation
of Article 13 of the Convention on account of the lack of a remedy
under domestic law whereby the applicant could have obtained a ruling
upholding her right to have her case heard within a reasonable time,
as set forth in Article 6 § 1 of the Convention (see Efimenko v.
Ukraine, no. 55870/00, § 64, 18 July 2006).
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, costs and expenses
- The
applicant claimed 10,000 euros (EUR) in non-pecuniary damage. She
further claimed 508 hryvnyas (EUR 75) in respect of pecuniary
damage, out of which EUR 20 represented expenses, justified by
receipts, incurred in connection with her application to the Court
(printing, copying services and correspondence expenses).
- The
Government contested these claims.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards her EUR 2,800
under that head. The Court further finds it reasonable to award the
applicant EUR 20 for expenses incurred in connection with her
Convention proceedings. As to the remainder of the amount claimed in
respect of pecuniary damage, the Court does not discern any causal
link between this amount and the violation found; it therefore
rejects this claim.
B. 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 application admissible;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,820
(two thousand eight hundred and twenty euros) in respect of
non-pecuniary damage and costs and expenses, 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;
(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 25 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
