BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF BUBLYK v. UKRAINE
(Application
no. 37500/04)
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 Bublyk 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,
Zdravka
Kalaydjieva, 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. 37500/04) 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 Tetyana Tarasivna
Bublyk (“the applicant”), on 9 October 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev. The applicant was represented by
Ms Vira Ivanivna Bublyk.
- On
26 November 2006 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1972 and lives in Munich, Germany.
- In
1996 the applicant entered into an agreement with a private company,
Skorpion, under which the latter was obliged to construct an
apartment in a block house. Following insolvency proceedings
instituted against this company, the applicant entered into a debt
transfer agreement (“the agreement”) with a private
company, KGD, (“the company”), under which the latter
accepted responsibility for the obligations of the Skorpion company.
- On
17 June 1999 the applicant instituted proceedings against the company
in the Ivano-Frankivsk Court. She requested
the court to declare a part of the agreement null and void and sought
a ruling to oblige the company to fulfil the remainder of the
agreement.
- On
6 September 1999 the Ivano-Frankivsk City Court (“the City
Court”) allowed the applicant's claim.
- On
16 November 1999 the Ivano-Frankivsk Regional Court
quashed this decision and remitted the case for fresh consideration.
- On
3 February 2000 the company lodged a counterclaim seeking termination
of the agreement on the ground that the applicant had failed to
comply with the agreement.
- On
6 December 2001 the City Court rejected the applicant's claim and
allowed the counterclaim.
- On
13 March 2002 the Ivano-Frankivsk Regional Court of Appeal (“the
Court of Appeal”) upheld this judgment.
- On
11 March 2004 the Supreme Court, following a cassation appeal by the
applicant, quashed the decisions of the lower courts and remitted the
case to the first-instance court for fresh consideration.
- In
the course of the proceedings, the applicant modified her claims on
several occasions. Finally she amended her claims on 22 August 2005.
She claimed property rights over the apartment in the house
constructed by the company which was occupied by Mr and Mrs K and
sought their removal. She also challenged the title documents on this
apartment which had been issued to Mr and Mrs K.
- On
8 August 2005 the City Court, following a request by the applicant,
attached Mr and Mrs K.'s apartment. On 3 November 2005 the Court of
Appeal upheld this ruling.
- On
6 March 2006 the company withdrew its counterclaim.
- On
7 March 2006 the City Court found against the applicant.
- On
12 July 2006 the Court of Appeal upheld this judgment.
- On
15 September 2006 the Supreme Court dismissed the applicant's
cassation appeal as unsubstantiated.
- The
applicant tried to appeal against the decisions given in her case
under extraordinary proceedings. However her efforts were to no
avail.
- According
to the records provided by the Government, in the course of the
proceedings, of forty-five listed hearings, four hearings were
adjourned due to the company's representative's failure to appear and
six due to his requests for adjournment. The domestic courts took no
steps to ensure his presence in court. Three hearings were
adjourned because the judge sitting in the case was involved in other
proceedings. Two hearings were adjourned at the applicant's request
and five because the applicant's representative or lawyer failed to
appear or at their request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the length 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...”
A. Admissibility
- The
Court notes that the 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 ground. It must
therefore be declared admissible.
B. Merits
- The Government contended that the parties to the
domestic proceedings had contributed to the length of the 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
applicant disagreed.
- The
Court notes that the proceedings at issue began in
June 1999 and ended on 15 September
2006. Therefore, the proceedings lasted for about seven years
and three months at three levels of jurisdiction.
- 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).
- Concerning
the question of the complexity of the present case, the Court
observes that it concerned a housing dispute. 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 alone cannot explain the overall length of
the proceedings at issue in the present case. The Court considers
that a number of delays (in particular, remittals of the case for
fresh consideration, lengthy consideration of the case by the
first-instance court after the ruling of the court of appeal of 16
November 1999, lengthy consideration of the cassation appeal lodged
in 2002, adjournments of hearings on account of the company's
representative's absence, adjournment of hearings because of the
judge's involvement in other proceedings) 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, for example,
Yakymenko v. Ukraine, no. 19142/03, §
39, 29 May 2008; Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; and Golovko v.
Ukraine, no. 39161/02, § 65, 1 February
2007).
- In
sum, having regard to the overall length of the proceedings and other
circumstances of the instant case, the Court concludes that there was
unreasonable delay in disposing of the applicant's case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 of the Convention about the
outcome of the proceedings in her case and that they were unfair.
Relying on Article 13 of the Convention she complained that in March
2002 her advocate had refused to represent her before the Court of
Appeal. She also complained under Article 1 of Protocol No. 1 that
her property rights had been violated since the domestic courts had
found against her. Finally, she invoked Articles 14 and 17, on the
same grounds.
- 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 1,099,384.46 Ukrainian hryvnyas (UAH, about 103,992
euros (EUR) in respect of pecuniary damage. She further claimed EUR
500,000 in respect of non-pecuniary damage.
- The
Government contested these claims as exorbitant and unsubstantiated.
- 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 awards the applicant EUR 1,200 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 3,342.40 (EUR 316.16) in relation to
her representation, translation, postal expenses, court fees, and
other expenses incurred both in the domestic and Convention
proceedings.
- With
respect to the postal expenses, expenses for copying and translation
of the documents the Government left the matter to the Court's
discretion. They contested the remainder of the applicant's 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 are
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 100 in respect of
costs and expenses and dismisses the remainder of her claims 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 under Article 6 §1
of the Convention concerning the 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 the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage and
EUR 100 (one hundred euros) in respect of costs and expenses, plus
any tax that may be chargeable, to be converted into 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 18 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
