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FIFTH
SECTION
CASE OF SEBOVA v. UKRAINE
(Application
no. 4430/04)
JUDGMENT
STRASBOURG
30 July
2009
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 Sebova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc
judge,
and Stephen Phillips,
Deputy
Section Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4430/04) 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 Mariya Mikhaylovna Sebova (“the
applicant”), on 13 December 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
6 December 2007 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
- The
applicant was born in 1947 and lives in the city of Odessa, Ukraine.
A. The first set of civil proceedings
- In
February 1996 Mr I. M., the father of the applicant’s
grandson, exchanged his share in the apartment in which he cohabited
with his parents, for the apartment of Mrs I.S, his
grandmother, who moved in with his parents. This transaction was
recorded in a residential premises exchange bureau (бюро
обміну житловими
приміщеннями),
but was not certified by a notary.
- In
May 1996 Mr I. M. gave the applicant a power of attorney
authorising her to manage all his property.
- In
June 1996 the applicant, acting on the basis of this power of
attorney, sold the apartment Mr I.M. had acquired from Mrs I.S to
Mr Y. S., the applicant’s former husband, who in
October 1996 sold it on to Mr V. K.
- On
23 June 1997 Mr I. M. instituted civil
proceedings in the Malynivsky District Court of Odessa (“the
Malynivsky Court”) against the applicant, Mr Y. S.
and Mr V. K., seeking to annul the sales of his apartment,
which he alleged had been effected in breach of confidence.
- On
9 October 1997 Mrs I.S. lodged a claim against
Mr I. M., his parents, the applicant, Mr Y. S.
and Mr V. K., seeking to annul the initial apartment
exchange and subsequent sales. These proceedings were joined to the
proceedings that had been brought by Mr I.M.
- On
17 May 1999 the Malynivsky Court dismissed Mr I. M.’s
claim for breach of confidence and upheld Mrs I.S.’s
claim for the annulment of the exchange, considering that the
exchange had not been certified by a notary in breach of applicable
law. However, having found that Mr V. K. had purchased the
apartment in good faith, the court declared him the lawful owner of
the apartment and ordered the applicant and Mr Y. S.
jointly to pay Mrs I.S. compensation of 41,181 Ukrainian
hryvnyas
for the loss of the apartment. The applicant and Mr Y. S.
appealed in cassation.
- On
31 December 1999 Mrs I.S. died.
- On
11 April 2000 the Odessa Regional Court
authorised Mrs L. M. to join the proceedings as
Mrs I.S.’s successor.
- On
25 April 2000 it quashed the judgment of 17 May 1999
as regards the amount of compensation awarded against the applicant
and Mr Y. S. after finding that the first-instance court
had insufficiently explored the relevant evidence, and remitted the
case for a fresh consideration.
- On
21 August 2001 the Malynivsky Court ordered the applicant
and Mr Y. S. to pay Mrs L. M. UAH 56,112
in compensation for the loss of the apartment. The applicant and
Mr Y. S. appealed.
- On
17 October 2002 the Regional Court quashed that judgment
and remitted the case for fresh consideration. The applicant and
Mr Y. S. appealed in cassation.
- On
29 May 2003 the Supreme Court rejected their request for
leave to appeal in cassation.
- On
several occasions the applicant and her husband unsuccessfully
challenged the decision to allow Mrs L. M. to join the
proceedings.
- On
18 December 2006 the Malynivsky Court ordered the applicant
and Mr Y.S to pay Mrs L. M. UAH 80,653.33
in compensation for the loss of the apartment.
- On
27 March 2007 the Odessa Regional Court of Appeal upheld
that judgment. The applicant and Mr Y. S. appealed in
cassation.
- On
31 May 2007 the Supreme Court upheld the judgments of the
lower courts.
B. The second set of civil proceedings
- On
7 October 1999 the applicant instituted civil proceedings
in the Central District Court of Odessa, alleging that Mr I. M.
had failed to repay her 7,000 United States dollars (USD) he had
received as a loan.
- On
24 May 2000 the court heard the case in the defendant’s
absence and allowed the applicant’s claim. It noted, in
particular, that the defendant had systematically ignored its orders
summoning him to the hearings. This judgment was not appealed against
and became final.
- On
21 February 2001 the Presidium of the Odessa Regional Court
quashed that judgment following an objection (протест)
instituted by the Deputy President and remitted the case for fresh
consideration. The Presidium confirmed that the defendant had been
duly notified of the hearings. However, it considered that the
interests of justice required his presence in order to clarify
ambiguities as to the nature and terms of the agreement between the
parties.
- On
20 March 2002 the Central District Court decided to hear
the case in the defendant’s absence in view of his repeated
refusals to accept service of the summons. It dismissed the
applicant’s claim. The applicant appealed.
- On
11 July 2002 the Regional Court quashed that judgment,
after finding the evidence that the defendant had been duly notified
of the hearings unpersuasive. Subsequently, the proceedings were
transferred to the Prymorsky District Court of Odessa (the Prymorsky
Court).
- On
24 December 2003 the Prymorsky Court dismissed the
applicant’s claim after hearing evidence from both parties. It
found that the applicant had failed to prove that Mr I. M.
owed her the money claimed.
- On
28 April 2004 the Regional Court quashed that judgment and
remitted the case for fresh consideration. Mr I. M.
appealed in cassation.
- On
22 September 2006 the Supreme Court rejected Mr I. M.’s
request for leave to appeal in cassation.
- On
3 April 2007 the first-instance court terminated the proceedings
since the parties failed to appear. The
applicant appealed.
- On
11 July 2007 the Regional Court quashed the ruling of 3 April 2007.
- On
8 October 2007 the first-instance court allowed the applicant’s
claim in part.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of both sets of 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
Court observes with respect to the first set of proceedings that 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. It notes, however, that in
assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of proceedings at that
time. The period in question ended on 31 May 2007.
It thus lasted almost nine years and six months for three levels of
jurisdiction.
- With
respect to the second set of proceedings, the period to be taken into
consideration began on 7 October 1999 and ended on 8 October 2007.
The overall duration of the proceedings,
excluding the period when there existed a final judgment in the case,
which was subsequently quashed, was about seven years and three
months. The case was considered by the courts at three 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
- In
their observations the Government contended
that there had been no violation of Article 6 § 1 of the
Convention.
- The
applicant disagreed.
- 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 the two sets of proceedings at issue in the present case. It finds
that a number of delays (in particular, repeated remittals of the
cases for fresh consideration) are attributable to the respondent
State.
- 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,
Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; and Moroz
and Others v. Ukraine,
no. 36545/02, § 62, 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 finds that in
the instant case the length of each 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 of
the Convention of procedural unfairness and about the outcome of the
proceedings. Additionally, relying on the same facts, she invoked
Article 10 of the Convention.
- The
Court has examined the remainder of the applicant’s complaints
and considers that, in the light of all the material in its
possession and in so far as the matters complained of were
are within its competence, they did
do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. Accordingly, the Court rejects them as manifestly
ill-founded, pursuant to 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
applicant claimed UAH 250,000 (about EUR 23,961) in respect of
pecuniary damage and UAH 250,000 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 pecuniary damage alleged; it therefore rejects this claim. As
to the non-pecuniary damage, ruling on an equitable basis, it awards
the applicant EUR 3,600.
B. Costs and expenses
- The
applicant claimed UAH 9,570 (about EUR 926)
for costs and expenses. This amount included, inter alia,
expenses of UAH 170 (about EUR 17) for postage.
- The
Government left the question of postage to the Court’s
discretion. They contested the remainder of her claims under this
head.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 20 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 complaint concerning the excessive
length of the first and second sets of proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the excessive length of
both sets of the proceedings;
- 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 3,600
(three thousand six hundred euros) in respect of non-pecuniary damage
and EUR 20 (twenty euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
