FIFTH SECTION

CASE OF KOVALEV v. UKRAINE

(Application no. 10636/05)

JUDGMENT

STRASBOURG

21 December 2010

This judgment is final but it may be subject to editorial revision.

In the case of Kovalev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Rait Maruste, President,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 30 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 10636/05) 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 Aleksey Petrovich Kovalev (“the applicant”), on 5 March 2005.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3.  On 11 January 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1958 and lives in Odessa.
5.  On 23 December 1999 the applicant lodged a claim with the Kyivskyy District Court of Odessa against the local land department. He sought the acknowledgement of his ownership title over a land plot which according to him was within his family estate.
6.  On 27 September 2000 the applicant lodged a claim with the Zhovtnevyy District Court of Odessa against the municipal council seeking the ownership certificates in respect of the disputed land to be declared invalid. The two claims were subsequently joined into one case.
7.  K., a private person and the owner of the disputed land plot, participated in the proceedings as a third party.
8.  On 16 August 2001 the Kyivskyy District Court of Odessa left the applicant’s claims without examination in view of his repeated failure to appear before the court. On 27 November 2001 the Odessa Regional Court of Appeal quashed the ruling of 16 August 2001 and sent the case for further examination.
9.  On 24 May 2002 the Kyivskyy District Court of Odessa found that the applicant had no legal basis to claim a title to the land plot and rejected his claims as unsubstantiated.
10.  On 6 September 2004 the Odessa Regional Court of Appeal dismissed the applicant’s appeal which he had to re-submit on several occasions in order to comply with procedural requirements and upheld the judgment of 24 May 2002.
11.  On 5 October 2004 the applicant appealed in cassation.
12.  On 20 July 2007 the Kharkiv Regional Court of Appeal, acting as a court of cassation, dismissed the applicant’s appeal in cassation and upheld the decisions of the lower courts.
13.  The applicant received a copy of the ruling of 20 July 2007 in September 2009 after he had lodged a number of enquiries with the courts.
14.  In the course of the proceedings the applicant lodged a number of procedural requests, some of which were allowed, including those concerning the application of provisional measures, withdrawal of the judges from his case, suspension of the proceedings in view of his health problems and pending the outcome of a criminal case against a private person concerning the matter. He also lodged appeals against some of the procedural rulings and requested copies of documents from the case-file. On six occasions the applicant failed to appear before the courts or requested adjournment of the hearings because of his health problems which caused a delay of about seven months. Another five-month delay was caused by respondents’ non-appearance before the courts.
THE LAW
I.  THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
15.  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
16.  The Government submitted that the applicant did not raise a complaint of the lengthy examination of his case by the domestic courts.
17.  The Court notes that in his application of 5 March 2005 the applicant complained of a violation of Article 6 § 1 of the Convention in respect of the examination of his case by the domestic courts and quoted, inter alia, the part of Article 6 which guarantees the right to “a ... hearing within a reasonable time”. The Court therefore rejects the Government’s objection.
18.  The Court further 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
19.  The applicant complained that the length of the proceedings had been excessive.
20.  The Government contested that argument. They maintained that the proceedings were complex as the applicant had lodged two claims and there had been a number of respondents involved. They further argued that the applicant had significantly contributed to the length of the proceedings by lodging appeals to the higher courts, some of which had not been in compliance with procedural requirements, and by lodging numerous procedural requests. The Government finally submitted that there had been no delays which could be attributed to the State.
21.  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).
22.  The Court notes that the period to be taken into consideration began on 23 December 1999 and ended on 20 July 2007. It thus lasted seven years, six months and twenty-eight days.
23.  The Court further notes that even though there were a number of respondents and a third party involved in the proceedings, the case did not concern any complex factual or legal issues.
24.  The Court also observes that the parties indeed contributed to the length of the proceedings by failing to appear, asking for adjournment of the hearings or lodging procedural requests (see paragraph 14 above). The Court however considers that the behaviour of the parties alone cannot justify the overall length of the proceedings of about seven years. In particular, the major delay was caused by the lengthy examination of the applicant’s appeal in cassation (see paragraphs 11 and 12 above). Furthermore, the cassation court notified the applicant of the final decision only two years after it had been adopted (see paragraph 13). The Court therefore concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.
25.  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, § 49-53, 6 September 2005; and Vashchenko v. Ukraine, no. 26864/03, § 50, 26 June 2008).
26.  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 COMPLAINTS
27.  The applicant complained of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of unfairness and outcome of the proceedings.
28.  In the light of the materials in its possession, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
29.  It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  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
31.  The applicant claimed 664,320 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 85,000 in respect of non-pecuniary damage.
32.  The Government did not express an opinion on the matter.
33.  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
34.  The applicant also claimed UAH 5,465 for the costs and expenses incurred before the Court.
35.  The Government did not express an opinion on the matter.
36.  Regard being had to the documents in its possession and to its case‑law, the Court awards the applicant EUR 556 covering the cost for correspondence and legal assistance in the proceedings before the Court.
C.  Default interest
37.  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
1.  Declares the complaint under Article 6 § 1 concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  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, EUR 1,200 (one thousand two hundred euros) in respect of non‑pecuniary damage and EUR 556 (five hundred fifty-six) for 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste
	Deputy Registrar	President