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FIFTH
SECTION
CASE OF KIRICHENKO AND BELINSKIY v. UKRAINE
(Application
no. 36283/02)
JUDGMENT
STRASBOURG
15 May 2008
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 Kirichenko and Belinskiy v. Ukraine,
The European Court of Human Rights
(Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Claudia Westerdiek, Section Registrar.
Having deliberated in
private on 22 April 2008,
Delivers the following
judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 36283/02) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by two
Ukrainian nationals, Ms Raisa Pavlovna Kirichenko and
Mr Viktor Aleksandrovich Belinskiy (“the
applicants”), on 19 July 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs V. Lutkovska, succeeded by Mr Y. Zaytsev.
- On
15 March 2005 the Court
decided to communicate the complaint concerning the length of the
proceedings 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
applicants were born in 1940 and 1937 respectively and live in
Odessa.
- In
1994 and 1995 the applicants made contributions to “U.”,
a trust fund (“the Trust Fund”), which invested them in
the construction of apartments by “M.”, a construction
company (“the Construction Company”), co-founded by the
municipal authorities and other unspecified shareholders. Initially
each applicant was assigned a specific apartment. However,
subsequently the investment contract between the Trust Fund and the
Construction Company was annulled and the latter entered into a
contract with another company, following which those apartments had
been reassigned to other persons.
- On
28 May 1996 and 10 June 1996 the first and the
second applicant respectively brought actions against the Trust Fund
and the Construction Company before the Suvorovsky District Court of
Odessa (Суворовський
районний суд
м. Одесса)
alleging breach of contracts. On 24 June 1996 these actions
were joined.
- On
12 August 1996 the court found that the Trust Fund had complied with
its obligations vis-à-vis the applicants. It further
held that the Construction Company was in default, declared each of
the applicants an owner of an apartment and awarded them default
interest and non-pecuniary damages. On 21 August 1996 the
court amended its judgment, having specified the concrete apartments
to be assigned to the applicants.
- On
29 October 1996 the Odessa Regional Court (Одеський
обласний суд),
following the Construction Company’s appeal, quashed the part
of the judgment relating to the monetary award and remitted the
respective claims for a fresh consideration. As regards the
applicants’ entitlement to ownership of the apartments, the
judgment was upheld and became final.
- On
5 February 1997 the Presidium of the Regional Court, following a
protest (an extraordinary appeal) of its President, quashed
the previous decisions to the extent that they upheld the applicants’
ownership and remitted these claims for a fresh consideration. On
several occasions the applicants unsuccessfully attempted to have
this decision repealed. In particular, they requested the
Constitutional Court to interpret provisions of applicable
legislation, this request having been rejected in November 2000.
- In
the meantime, in March 1998 the Construction Company’s
registration was annulled and its founders were obliged to carry out
liquidation formalities. In May 2000 the Construction Company’s
director, his deputy and the chief accountant were convicted of
several criminal offences in connection with the company management.
- On
25 September 2001 the applicants lodged a cassation appeal
with the Supreme Court of Ukraine against the decision of
5 February 1997 following the newly introduced cassation
procedure.
- On
10 January 2002 the Supreme Court rejected their request
for leave to appeal in cassation.
- Between
April 2002 and April 2004 the proceedings were suspended on
account of lack of information about the location of the defendant
entities.
- Between
14 July and 29 November 2004 no hearings were
scheduled on account of the second applicant’s illness.
- On
16 March 2005 the District Court decided to leave the
applicants’ claims without consideration referring to their
repeated failures to appear before the court. The applicants
appealed.
- On
22 December 2005 the Regional Court quashed the decision of
16 March 2005 for want of evidence that the applicants had
been duly notified about the hearings.
- On
27 July 2006 the proceedings were suspended on account of
the second applicant’s illness. According to the applicants, no
hearings were scheduled since that time and the proceedings are
currently pending before the first-instance court.
- Between
September 1997 and the present time the court scheduled the
total of some forty hearings. Only some three of the hearings took
place. The other hearings were adjourned predominantly on account of
the absence of one or both of the defendants.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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
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. 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.
The
period in question has not yet ended. It has thus lasted over ten and
a half years for two levels of jurisdiction.
A. Admissibility
- The
Government raised objections, contested by the applicants, concerning
the observance of the six-month rule and the exhaustion of domestic
remedies, similar to those which the Court has already dismissed in
other cases (see e.g. Zhurba v. Ukraine (dec.), no. 11215/03,
19 June 2007 and Moroz and Others v. Ukraine,
no. 36545/02, §§ 46-49, 21 December 2006).
The Court finds that these objections should be dismissed on the same
grounds.
- The
Court notes that the complaint about the length of the proceedings 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 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 case, the Court finds that
the complexity of the case and the applicants’ conduct alone
cannot explain the overall length of the proceedings. It considers
that a number of delays (in particular, repetitive adjournments of
hearings in view of the defendants’ absence and prolonged
periods of procedural inactivity) can be attributed 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 e.g Smirnova v. Ukraine, no. 36655/02,
§ 69, 8 November 2005 and Siliny v. Ukraine,
no. 23926/02, § 34, 13 July 2006 and Moroz and
Others v. Ukraine, no. 36545/02, § 59,
21 December 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. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
- The applicants further complained under Article 1
of Protocol No. 1 that the domestic authorities had failed to
uphold their ownership rights in the apartments and under Article 13
of the Convention that they had no effective remedies for this
complaint, in particular, since the Constitutional Court had refused
to consider their application. Finally, the applicants invoked
Article 14 of the Convention to the facts of the case.
- The
Court reiterates that the domestic proceedings concerning the
determination of the applicants’ ownership claim are still
pending before the first-instance court. Having carefully examined
the applicants’ submissions in the light of all the material in
its possession and insofar 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.
- It
follows that this part of the application must be declared
inadmissible in accordance with Article 35 §§ 3
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
applicants claimed the equivalent of the present-day cost of the
apartments in which they had invested their funds by way of
compensation for pecuniary damage. They further claimed UAH 125,506
and UAH 158.631 respectively by way of non-pecuniary damage.
- 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 finds that the applicants must have sustained
non-pecuniary damage on account of the excessive length of the
proceedings. Ruling on an equitable basis, the Court awards each
applicant EUR 4,000 in this respect.
B. Costs and expenses
- The
applicants also claimed UAH 700 each in legal fees.
- The
Government contested this claim.
38. The Court reiterates that, in order
for costs and expenses to be included in an award under Article 41,
it must be established that they were actually and necessarily
incurred in order to prevent or obtain redress for the matter found
to constitute a violation of the Convention and were reasonable as to
quantum (see, among many other authorities, Nilsen
and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII).
39. The Court considers that these
requirements have not been met in the instant case. It notes that the
case was not particularly complex and the applicants first informed
the Court of their representation in their final written submissions
to the Court. The Court further notes that the applicants were
granted leave to use Russian in the written procedure before the
Court that would make unnecessary any expenses for the translation
and certification of the documents presented to the Court. Regard
being had to the information in its possession and to the above
considerations, the Court rejects the applicants’ claim for
costs and expenses.
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 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 each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 4,000 (four thousand Euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
the national currency 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
