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 GUTKA v. UKRAINE
(Application
no. 45846/05)
JUDGMENT
STRASBOURG
8
April 2010
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 Gutka v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo
Buromenskiy, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 45846/05) 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, Ms Paraskoviya Volodymyrivna Gutka (“the
applicant”), on 28 November 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
5 March 2009 the
President of the Fifth Section decided to communicate the complaints
concerning the length of the proceedings and the lack of remedies in
that respect 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 CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1932 and lives in Lutsk, Ukraine.
- By
judgment of 14 December 1998 the Lutsk City Court partitioned a
property inheritance between the applicant's mother and her
relatives.
- On
26 August 1999 the applicant's mother gifted the applicant part of an
apartment in Lutsk awarded to her by the above-mentioned judgment.
- In
September 1999 the applicant's mother instituted proceedings in the
Lutsk City Court against Z.V., M.V. and three other persons (her
relatives), seeking their eviction from her apartment.
- On
18 December 1999 the applicant's mother died. On 12 January 2000
the applicant was admitted to the proceedings as her next of kin.
- In
February 2000 Z.V. and M.V. lodged a counterclaim, seeking to have
the contract of 26 August 1999 declared void; subsequently they
sought invalidation of the applicant's mother's will which was in
favour of the applicant. They also sought to have property rights
over the relevant parts of the disputed apartment acknowledged as
theirs.
- On
29 January 2003 the court found for the applicant and ordered the
defendants to vacate the apartment. It dismissed the counterclaim by
Z.V. and M.V.
- The defendants appealed but due to the shortcomings of
their appeal the proceedings were protracted for four months.
- On
13 August 2003 the Volyn Regional Court of Appeal, having found,
inter alia, that the lower court had failed to examine crucial
pieces of evidence, set aside that judgment and remitted the case for
fresh examination.
- On 5 September 2003 the applicant appealed in
cassation against the latter decision; on 12 October 2006 the
Supreme Court of Ukraine dismissed her appeal.
- Of almost thirty hearings held between September 1999
and 12 October 2006 seven were adjourned due to the defendants'
failure to appear before the court. Within this period three forensic
examinations were held staying the proceedings in total for one year
and four months.
- In
November 2006 the Lutsk City Court took over the case.
- From 15 March to 23 July 2007 the proceedings were
stayed as the additional forensic examination had been ordered.
- On
20 December 2007 the Lutsk City Court declared the contract of
26 August 1999 and the applicant's mother's will void. It
dismissed the applicant's request to have the defendants evicted.
- Of
the eleven hearings held by the first instance court one was
adjourned due to the applicant's and two due to the defendants'
failure to appear before the court.
- On 2 April and 7 October 2008 the Volyn Regional Court
of Appeal and the Supreme Court of Ukraine dismissed the applicant's
appeals and upheld the judgment.
THE LAW
I. LENGTH OF PROCEEDINGS
- 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...”
She
also complained that there was no effective remedy for her complaint
that the length of the civil proceedings in her case had been
excessive. She relied in that respect on Article 13 of the Convention
which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
period to be taken into consideration began on 12 January 2000, when
the applicant joined the proceedings, and ended on 7 October 2008. It
thus lasted eight years and almost nine months for three levels of
jurisdiction.
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 6 § 1 of the Convention
- The
Government submitted that the length of the proceedings in question
had been caused by the complexity of the case. In this regard they
referred to the number of litigants and other participants, the
number of claims the courts had had to adjudge, the complexity of
legal and factual issues raised in the case and that the courts
needed forensic examinations on several occasions. They also
maintained that the parties, whose conduct was not imputable to the
respondent State, themselves caused considerable delays in the
proceedings at issue, for example, by failing to attend court
hearings, requesting additional pieces of evidence, modifying their
claims, lodging appeals against courts decisions, failing to comply
with procedural requirements and so on. In sum they concluded that
the domestic judicial authorities were acting with due diligence in
the present case.
- The
applicant, albeit agreeing that the case was complex and needed more
time for examination, disagreed that period in question was
reasonable. In particular, she pointed at the deficiency of the
judgment of 29 January 2003, which brought about retrial, and at
the delay caused by the Supreme Court of Ukraine (see paragraph 13
above).
- 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).
- Turning
to the circumstances of the present case, the Court agrees with the
parties that the number of participants, number of claims, and the
legal and factual issues involved complicated the case before the
domestic courts. However, for the reasons set out below, such
complexity itself cannot justify the length of proceedings under
consideration.
- The Court further accepts in part the Government's
contention that the parties contributed to the length of the impugned
proceedings. It is true that, although a party to civil proceedings
cannot be blamed for using the avenues available to him under
domestic law in order to protect his interests, he must accept that
such actions necessarily prolong the proceedings concerned (see
Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5
April 2001). By failing to comply with the procedural requirements
for lodging of an appeal the defendants protracted the proceedings
for four months (see paragraph 11 above), whereas the applicant,
by lodging appeals which were ultimately dismissed as unfounded,
extended the proceedings for additional ten months (see paragraph 19
above).
- The
remainder of the Government's arguments concerning the parties'
conduct does not exonerate the respondent State as it is the role of
the domestic courts to manage their proceedings so that they are
expeditious and effective (see, for example,
Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 183, ECHR 2006 V and Nesterova v. Ukraine,
no. 10792/04, § 43, 28 May 2009).
- Moreover,
the Court, agreeing with the applicant, points out that her appeal in
cassation was pending before the Supreme Court of Ukraine for more
than three years (see paragraph 13 above) and that cannot be
considered as reasonable and proper administration of justice.
- 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, and Efimenko v. Ukraine,
no. 55870/00, § 58, 18 July 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 proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2. Article 13 of the Convention
- Referring
to their conclusion that there was no violation of Article 6 § 1
of the Convention in the present case, the Government contended that
there was no violation of Article 13 of the Convention either.
- The
applicant disagreed.
- The
Court has frequently found violations of Article 13 of the
Convention, stating that the current Ukrainian legislation does not
provide a remedy for complaints concerning the length of proceedings
(see Efimenko v. Ukraine, cited above, §§ 48-50
and 64 and subsequent case-law). In the present case the Court finds
no reason to depart from that case-law.
There
has accordingly also been a breach of Article 13.
II. OTHER COMPLAINTS
- The
applicant also complained under Article 6 § 1 of the Convention
about the courts' assessment of the evidence and interpretation of
the law and challenged the outcome of the proceedings. She also
relied on Article 1 of Protocol No. 1.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, 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.
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 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award her EUR 1,200
under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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 under Articles 6 § 1
and 13 of the Convention concerning the length of proceedings and
lack of effective remedies in that respect 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 has been a violation of Article
13 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), plus any tax that may be chargeable, in
respect of non-pecuniary damage, 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 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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
