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FIFTH
SECTION
CASE OF PILIPEY v. UKRAINE
(Application
no. 9025/03)
JUDGMENT
STRASBOURG
18 June 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 Pilipey v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Stanislav
Shevchuk, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 26 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9025/03) 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 Lukich Pilipey (“the applicant”),
on 1 March 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
3 September 2008 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 1946 and lives in the town of Rivne, Ukraine.
A. Proceedings instituted against the applicant's
father and uncle
- In
March 1976 the Executive Committee of the Rivne Local Council
instituted proceedings against the applicant's father and the
applicant's uncle in the Rivne People's Court. The Committee sought
confiscation of the house owned by them because there had been
serious breaches of building regulations. The case was considered on
several occasions. On 22 March 1977 the People's Court ruled
that the house should be confiscated. On 28 April 1977 the Rivne
Regional Court upheld that judgment. Following that decision the
house was confiscated.
- The applicant's father died in
1985. In 1990 the Rivne Local Council sold a part of the house (“the
disputed property”) to Ms K.
- On 27 January 1993 the Presidium of the Rivne Regional
Court, upon an objection (протест)
by its President, quashed the judgment of 22 March 1977 and
remitted the case to the same court for fresh consideration.
- On
12 April 1993 the Rivne Court dismissed a claim lodged by the
Executive Committee of the Rivne Local Council.
B. Civil proceedings instituted by the applicant
- On
24 January 1994 the applicant and Mr P. instituted proceedings
against Ms K. and the Executive Committee of Rivne Local Council in
the Rivne Court, seeking to have the above-mentioned contract of sale
declared null and void and claiming ownership of the disputed
property.
- On
12 April 1994 Mr K., husband of Ms K., lodged a counterclaim, seeking
recognition of ownership of the disputed property.
- On
25 January 1995 Ms S. and Ms Ko. instituted proceedings against Mr
and Ms K., claiming ownership of the
disputed property.
- In
the period from 26 January 1994 to 3 November 1996 the first-instance
court scheduled ten hearings.
- On
4 November 1996 the court granted a request by the applicant's lawyer
to suspend the proceedings on the ground that the applicant was
undergoing treatment. After that date the next hearing was scheduled
by the court only for 18 May 1998.
- On
25 March 1998 Ms. K died. On 18 May 1998 the court decided to suspend
the proceedings until Ms K.'s successors joined the proceedings.
- On
18 March 1999 the court decided to join Mr K. as a defendant in the
case. On the same day the court joined the consideration of the above
proceedings.
- Between
19 May 1998 and 22 March 2000 the court scheduled one hearing.
- Between
23 March 2000 and 15 October 2001 the court scheduled no hearings.
- On
21 March 2002 the court found against the applicant. In particular,
the court found unsubstantiated the applicant's allegation that he
could claim inheritance rights over the disputed property.
- On
26 June 2002 the Rivne Regional Court of Appeal upheld that judgment.
- Between
16 October 2001 and 26 June 2002 the first-instance court and the
court of appeal scheduled six hearings. Four hearings were adjourned
on account of the one of the parties' failure to appear or at their
request.
- On
22 January 2003 the Supreme Court dismissed an appeal in cassation by
the applicant.
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...”
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
1. The parties' submissions
- The
Government contended that the parties to the domestic proceedings had
contributed to the length of proceedings and that the State could not
be held liable for their behaviour. Further, they pointed out that
the case was complex and that the judicial authorities had acted with
due diligence. The Government lastly maintained that the length of
proceedings in the applicant's case had not been unreasonable.
- The
applicant disagreed.
2. Period to be taken into consideration
- The
applicant took his case to the court instituted proceedings in
January 1994; however, the Court's jurisdiction ratione temporis
covers only the period after the entry into force of the Convention
in respect of Ukraine, on 11 September 1997. Nevertheless,
in assessing the reasonableness of the time that elapsed after 11
September 1997, account must be taken of the state of
proceedings on that date (see Milošević v. the former
Yugoslav Republic of Macedonia, no. 15056/02, § 21,
20 April 2006).
- The
judicial proceedings ended in January 2003, when the Supreme Court
gave a final judgment in the applicant's case.
- Therefore,
the length of the judicial proceedings falling within the Court's
competence ratione temporis was five years and four months for
three levels of jurisdiction.
3. 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).
- Although
the domestic courts were required to examine a certain amount of
documentary evidence, the issues before them were not of such a
nature as to necessitate prolonged consideration of the applicant's
case. Therefore, the Court concludes that the subject matter of the
litigation at issue cannot be considered particularly complex.
- The Court notes that the
complexity of the case and the applicant's conduct cannot explain the
overall length of the proceedings at issue in the present case. It
finds that a number of delays can be attributed to the Government.
In particular, the Court notes the prolonged periods of procedural
inactivity and the failure to schedule the proceedings regularly (see
paragraphs 13-17 above). The Court observes in that connection that
it is the role of the domestic courts to manage the proceedings
before them so that they are expeditious and effective (see Scordino
v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR
2006 ...).
- 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, for
example, Yakymenko
v. Ukraine,
no. 19142/03, § 39, 29 May 2008; Pavlyulynets v.
Ukraine, no. 70767/01, §
53, 6 September 2005; and Loshenko v. Ukraine, no.
11447/04, § 40, 11 December 2008).
- 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 also invoked Article 13 in respect of
his complaint about the length of the proceedings. Having regard to
its findings under Article 6 § 1 (see paragraphs 34 above), the
Court concludes that this complaint is admissible, but considers that
it is not necessary to rule whether, in this case, there has been a
violation of Article 13 of the Convention (see Kushnarenko v.
Ukraine, no. 18010/04, § 25, 13 November 2008, and
Kukharchuk v. Ukraine, no. 10437/02, §§
39-40, 10 August 2006).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained about the outcome of the proceedings in his
case. He relied on Article 6 § 1 and Article 13 of the
Convention. The applicant further alleged that by having found
against him, the domestic courts had violated Article 1 of Protocol
No. 1 to the Convention. The applicant lastly invoked Article 1 of
the Convention.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession, and in so far 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 as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. 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 100,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 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
dismisses this claim. On the other hand, ruling on an equitable
basis, it awards the applicant EUR 600 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award 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 complaints 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 that there is no need to examine
separately the applicant's complaint under Article 13 of the
Convention about the length 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 600 (six
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, 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 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 18 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
