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FIFTH
SECTION
CASE OF TERENTYEV v. UKRAINE
(Application
no. 39763/02)
JUDGMENT
STRASBOURG
29 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 Terentyev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 6 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39763/02) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Vladimir Yemelyanovich Terentyev
(“the applicant”), on 8 October 2002. The
applicant was represented before the Court by
Mrs S. Toropchina-Agalakova.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
11 May 2006 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 1937 and lives in Dnipropetrovsk.
- After
the death of his father, the applicant inherited 38/100 of a house
and the right to use the adjacent plot of land.
A. First set of proceedings
- On
14 May 1996 the applicant instituted civil proceedings in
the Babushkinsky District Court of Dnipropetrovsk (Бабушкінський
районний суд
м. Дніпропетровська),
“the Babushkinsky Court”, alleging that Mrs N.,
the co-owner of the house, perpetually abused her land use rights and
seeking to divide the plot of land between them.
- On
22 August 1996 the court ordered an expert assessment to
determine the manner in which to divide the plot and suspended the
proceedings. On 6 May 1997 an
expert report, containing several possible solutions, was delivered
to the court.
- On
7 August 1997 the court ordered an additional expert assessment
and in October 1997 suspended the proceedings pending its outcome.
The following hearing in the case was scheduled for 23 June 1998.
- On
15 January 1999 the applicant amended his initial claims,
additionally seeking recognition of his right to a part of the cellar
and of the waste funnel. In April 1999 the court decided to
disjoin the applicant's new claims, however, eventually they were
decided within the framework of the initial proceedings.
- On
13 April 1999 Judge R. replaced Judge M., who had been
initially dealing with the applicant's case, as the latter's term of
office had expired. The case was adjourned until 13 October
1999.
- On
27 December 2000 the court decided to divide the land
according to one of the options proposed by the experts. The
applicant appealed in cassation, alleging that that option was
unsatisfactory.
- On
2 April 2001 the Dnipropetrovsk Regional Court
(Дніпропетровський
обласний суд),
“the Regional Court”,
quashed the judgment of 27 December 2000 and remitted the
case for a fresh examination.
- On
29 January 2003 the court discontinued proceedings in the
case on the ground that the parties had failed to use the
non-judicial means of settlement of their dispute. The applicant
appealed.
- On
15 April 2003 the Regional Court quashed the decision of
29 January 2003 and remitted the
case for a fresh consideration.
- On
24 December 2003 the court divided the land according to
another option suggested by the experts and dismissed the applicant's
claims concerning the waste funnel and the cellar as lodged outside
the statute of limitation. The defendant appealed.
- On
1 April 2004 the Regional Court rejected the defendant's
appeal and the judgment of 24 December 2003 became
enforceable.
- After
the expiration of the statutory period for lodging cassation appeal,
when the judgment in the case had become final, Ms K., who had
acquired the house from the defendant, unsuccessfully sought renewal
of the time-limit for lodging cassation appeal. The last decision
concerning this request was taken on 10 September 2004.
- Between
September 1997 and 24 December 2003 the trial court
scheduled the total of some twenty-seven hearings with intervals from
three weeks to ten months. Some sixteen of these hearings were
adjourned, ten adjournments being attributable to the defendant's
absences.
- In
May 2004, following the applicant's request, the bailiffs'
service instituted enforcement proceedings in respect of the judgment
of 24 December 2003. In November 2005 the applicant sold
his part of the house and requested that the enforcement proceedings
were discontinued. On 22 November 2005 this request was
allowed.
B. Second set of proceedings
- On
17 April 1998, in the course of the first set of
proceedings, the applicant lodged with the Babushkinsky Court an
additional claim, seeking pecuniary and non-pecuniary damages for
Mrs N.'s abuses of her land use right. On 19 December 2000
the court decided to consider this claim separately from the initial
set of proceedings.
- On
11 July 2001 the court discontinued proceedings in the case
due to the parties' failure to appear.
- On
28 December 2001 the applicant lodged an appeal against the
decision of 11 July 2001, referring to the failure of the
Babushkinsky Court to notify him about the date of the hearing.
- On
6 March 2002 the Babushkinsky Court refused to grant the
applicant leave to appeal on the ground that the latter had been
lodged out of time. The applicant appealed, alleging that he had
missed the time-limit because the Babushkinsky Court had failed to
notify him about the decision of 11 July 2001 in good time.
- On
29 April 2002 the Regional Court quashed the decision of
6 March 2002 and remitted the question of the admissibility
of the applicant's appeal for a fresh consideration.
- On
31 May 2002 the Babushkinsky Court refused to grant the
applicant leave to appeal for essentially the same reasons as stated
in its decision of 6 March 2002.
- On
10 October 2002 the Regional Court quashed the decision of
31 May 2002 and remitted the applicant's appeal for a
decision on its admissibility.
- On
13 November 2002 the Babushkinsky Court granted the applicant
leave to appeal against the decision of 11 July 2001.
- On
20 January 2003 the Regional Court rejected the applicant's
appeal against the decision of 11 July 2001 as being
unsubstantiated.
- On
30 September 2004 the Supreme Court of Ukraine allowed the
applicant's appeal in cassation and quashed the decisions of
11 July 2001 and 20 January 2003. It held that
there was no evidence that the parties had been duly informed about
the hearing on 11 July 2001. The Supreme Court remitted the
case for a fresh consideration on the merits.
- In November 2005
the applicant withdrew his claim for compensation. On 18 November
2005 the Babushkinsky Court terminated the proceedings.
- According
to the case-file materials, in the course of the proceedings the
trial court scheduled at most eight hearings. None of them was
attended by the defendant.
THE LAW
I. SCOPE OF THE CASE
- The
Court notes that, after the communication of the case to the
respondent Government, the applicant additionally complained under
Article 13 of the Convention about lack of effective remedies
for his complaint about the unreasonable length of the civil
proceedings in his case.
- In
the Court's view, this new complaint is not an elaboration of the
applicant's original complaint under Article 6 § 1,
lodged with the Court four years earlier, on which the parties have
commented. The Court considers, therefore, that it is not appropriate
now to take this matter up in the present context (see Skubenko
v. Ukraine (dec.), no. 41152/98,
6 April 2004).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings in the case
concerning his dispute with Mrs N. 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
Court notes that the application 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. The period to be taken into account
- According
to the Government, the period to be taken into account with respect
to the first set of proceedings commenced on 11 September 1997,
when the Convention entered into force in respect of Ukraine. This
period lasted through 10 September 2004, the date of the
last decision dismissing the defendant's request for renewal of the
time-limit for lodging an appeal in cassation.
- As
regards the second set of proceedings, the Government submitted that
they lasted from 19 December 2000, when these proceedings
were disjoined from the first set, until 18 November 2005,
when the court discontinued proceedings following the applicant's
decision to withdraw his claim.
- The
applicant disagreed. He maintained that the second set of the
proceedings should not be examined in isolation from the first set,
since both sets of the proceedings concerned a dispute with the same
person regarding the same property.
- The
Court recalls that the first set of proceedings concerned division of
land, while the second one concerned the applicant's right to
compensation for the defendant's alleged abuse of common property.
The two sets of proceedings were pending simultaneously for over
three years and, based on the materials in the Court's possession,
there is no conclusive evidence that their factual and evidentiary
basis was identical or that the outcome of the proceedings concerning
the division of land was decisive for the determination of the
applicant's right to compensation (see by contrast Svetlana
Naumenko v. Ukraine, no. 41984/98, §§ 74-75,
9 November 2004). Moreover, according to the case-file
materials, the applicant never lodged an appeal against the trial
court's decision to disjoin his claims. In these circumstances, the
Court finds that the length of the two sets of proceedings should be
examined separately.
- The
first set of proceedings started in May 1996. However, the period to
be taken into consideration began only on 11 September 1997,
when Ukraine officially recognised the right of individual petition.
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. The judicial stage of the proceedings lasted
until 1 April 2004, resulting in adoption of an enforceable
judgment concerning the applicant's claims. The subsequent
unsuccessful attempts of the defendant to obtain re-opening of the
proceedings after this judgment had become final cannot be taken into
account, since such proceedings fall outside the scope of
Article 6 § 1 (see e.g. Prystavska v. Ukraine
(dec.), no. 21287/02, 17 December 2002). The
proceedings in their judicial phase thus lasted six years and seven
months for two levels of jurisdiction. Between May 2004 and
November 2005 the applicant was further a party to enforcement
proceedings in the above case.
- As
regards the second set of proceedings, the Court recalls that the
applicant initiated the “determination” of his “civil
rights” within the meaning of Article 6 § 1 of
the Convention by lodging a compensation claim on 17 April 1998
and withdrew it in November 2005. The proceedings thus lasted
seven years and seven months for three levels of jurisdiction.
2. Reasonableness of the length of the proceedings
- 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 notes that the complexity of the case and
the applicant's conduct alone cannot explain the overall length of
both sets of the proceedings at issue in the present case. It finds
that a number of delays (in particular, repetitive remittals of the
cases for a fresh consideration, prolonged periods of procedural
inactivity and numerous adjournments of hearings on account of the
defendant's absence) 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; Siliny v. Ukraine,
no. 23926/02, § 34, 13 July 2006; and Moroz
and Others v. Ukraine, no. 36545/02, §§ 59-60,
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 two sets of proceedings
was excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1.
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 7,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage on account of the excessive length of proceedings in his
cases. Ruling on an equitable basis, it awards him EUR 3,200
under that head.
B. Costs and expenses
- The
applicant presented receipts for UAH 483.22 in postal and
photocopying expenses in connection with his application to the
Court. Additionally he requested UAH 5,000 for his legal
representation before the Court without providing supporting
documents. Lastly, the applicant assessed that he had spent around
UAH 7,193 in connection with his efforts to speed up the
proceedings at the domestic level, including UAH 4,950 in legal
fees, for which he presented receipts. A receipt for UAH 1,200
dated October 2003 includes the following reference: “Payment
in connection with filing complaints about delay in the proceedings”.
The other receipts refer to fees for drafting appeals and other court
documents or bear no reference to the type of legal advice received.
- The
Government contested these claims.
- 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).
- Regard
being had to the information in its possession and the above
criteria, the Court awards the applicant EUR 80 for postal and
photocopying costs and EUR 200 in legal fees. The Court
dismisses the remainder of the applicant's claim 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. 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 3,200
(three thousand two hundred euros) in respect of non-pecuniary damage
and EUR 280 (two hundred eighty euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant on the
above amounts, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
