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FIFTH
SECTION
CASE OF BELOUS v. UKRAINE
(Application
no. 22580/04)
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 Belous v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
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. 22580/04) 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 Yana Stanislavovna Belous (“the
applicant”), on 7 June 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
12 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 1988 and lives in the town of Dneprodzerzhinsk,
Ukraine.
A. Background information
- As
of August 1996, the applicant, then a minor, was registered as a
resident in a State-owned apartment (“the first apartment”)
along with S.B., her mother, A.Z., her maternal grandmother, and
R.Z., her maternal uncle. According to the law in place at the
material time, all residents had the right to privatise the apartment
with equal shares.
- However,
at the material time the applicant's uncle was serving a sentence in
a penitentiary, the applicant's mother was missing, and the applicant
lived with G.G., subsequently appointed her legal guardian, at a
different address. On 9 August 1996, A.Z. privatised the apartment
and became its sole owner. The officers of the housing authority, who
had issued her with the necessary documents, were subsequently
indicted for fraud and negligence and later amnestied.
- On
16 August 1996 A.Z. sold the apartment to Y.K. On
15 November 1996 Y.K. exchanged it for an apartment owned
by T.M. (“the second apartment”). On
27 January 1997 he sold the second apartment to O.V., who
then gave it as a gift to N.K. In 1998 T.M. died and her two minor
sons, who remained the owners of the first apartment, were taken into
public care and accommodated in boarding schools.
- The
first apartment has remained empty since its first sale.
B. First set of civil proceedings
- On 15 December 1998
the Zavodsky District Prosecutor of Dniprodzerzhinsk, having
determined that the applicant had insufficient means to pay for
representation of her lawful interests before the court, instituted
civil proceedings on her behalf in the Zavodsky District Court of
Dniprodzerzhinsk (“the Zavodsky Court”) seeking annulment
of the privatisation and of the sale of the first apartment to Y.K.
- The
applicant's legal guardian, G.G. was summoned and participated in the
proceedings as the applicant's statutory representative. On an
unspecified date the applicant was summoned to the proceedings as a
third party.
- Between
December 1998 and February 2000 there were no further
procedural actions.
- On
7 February 2000 the Prosecutor amended his claims,
requesting annulment of all the transactions with regard to the first
and the second apartments, restitution of the applicant's right to
reside in the first apartment, as well as the return of the title to
the second apartment to T. M.'s children.
- The
first hearing was scheduled for 12 October 2000.
- Between
October 2000 and June 2002 the court scheduled some nineteen
hearings, some thirteen of which were adjourned on account of the
absences of one or more of the defendants or their representatives.
On three other occasions the Prosecutor failed to appear, and on one
occasion the hearing was adjourned on account of the judge's
sickness.
- On
14 June 2002 the Zavodsky Court dismissed the Prosecutor's
claims, having found that Y.K. had purchased the first apartment in
good faith, while the requests for annulment of the subsequent
transactions were unsubstantiated in this context. The Prosecutor
appealed.
- On
22 July 2002 the Zavodsky Court found that the Prosecutor
had failed to provide full details of the parties in his appeal and
gave him a fixed time-limit to rectify these shortcomings.
- On
16 October 2002 the Zavodsky Court returned the
Prosecutor's appeal as “not lodged” as he had not
rectified the shortcomings as instructed.
- On
6 March 2003 the Prosecutor appealed against the decision
of 16 October 2002, requesting leave to appeal out-of-time,
in view of the fact that the Zavodsky Court had not notified him of
either the decision of 22 July or that of 16 October 2002.
- On
11 March 2003 the Zavodsky Court gave the Prosecutor leave
to appeal out-of-time.
- On
21 May 2003 the Dnipropetrovsk Regional Court of Appeal
(“the Regional Court”) returned the submissions to the
first-instance court as the latter had failed to supplement them with
a copy of the Prosecutor's original appeal against the judgment of
14 June 2002.
- On
21 August 2003 the Regional Court quashed the decision of
16 October 2002 to return the Prosecutor's appeal against
the judgment as “not lodged”.
- On
23 October 2003 the Prosecutor was granted leave to appeal
out of time against the judgment of 14 June 2002.
- On
17 December 2003 the Regional Court quashed the judgment of
14 June 2002 and remitted the case for fresh consideration,
having found that the first-instance court had not given due regard
to the fact that A.Z., having fraudulently privatised the apartment,
had been unable to convey good title to third parties.
- Between
February 2004 and December 2006 the court scheduled fifteen hearings,
some seven of which were adjourned on account of the absences of one
or more of the defendants. On three other occasions the Prosecutor
failed to appear. On one occasion the judge failed to appear as he
was on holiday, on three occasions because he was ill, and on five
occasions because he was involved in other proceedings.
- On
20 December 2006 the Zavodsky Court terminated the
proceedings as the applicant had reached the age of majority.
C. Second set of civil proceedings
- On
an unspecified date in March 2007 the Dniprodzerzhinsk Prosecutor,
acting in the applicant's interests, instituted new civil proceedings
in the Zavodskoy Court. He challenged the privatisation of the
apartment by A.Z and requested the court to declare null and void the
sale and exchange of the first apartment. The Prosecutor also claimed
the applicant's property right over the apartment. On 4 April 2008
the court allowed the claims.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the first set of the
proceedings had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention. She
further complained under Article 13 that there was no effective
remedy for the length of proceedings complaint. The provisions at
issue read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
Article 13
“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 15 December 1998
and ended on 20 December 2006. It thus lasted approximately eight
years at two levels of jurisdiction.
A. Admissibility
- The
Government contended that the dispute at issue did not concern the
applicant's civil rights and obligations. They concluded therefore
that Article 6 § 1 of the Convention was not applicable to the
proceedings. The Government further submitted that the complaint
should be rejected for non-exhaustion of domestic remedies since the
applicant had failed to appeal against the ruling of
20 December 2006.
- The
applicant disagreed.
- The Court observes that the claims were lodged in the
applicant's interests by a public official, who had a power to
intervene in order to protect the applicant's rights (see Teliga
and Others v. Ukraine, no. 72551/01, § 82, 21 December
2006). The Court further notes that the applicant, as a minor, was
represented by her guardian in the proceedings. The dispute at issue
concerned, inter alia, the applicant's right to reside in the
apartment in question. Accordingly, the proceedings in question
concerned the determination of the applicant's civil rights in the
sense of Article 6 § 1 of the Convention.
- The
Court notes that the application 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
- The
Government lodged no observations on the merits of the application.
- The
applicant maintained her complaint.
- 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 has frequently found violations of Article 6 § 1 and
Article 13 of the Convention in cases raising issues similar to the
one in the present case (see
for example Frydlender,
cited above, § 46 and Vashchenko v.
Ukraine, no. 26864/03, §§ 55
and 59, 26 June 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 violation of Article 6 § 1 and Article 13
of the Convention.
II. 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
- In
her initial application the applicant claimed 3,000 euros (EUR) by
way of compensation for pecuniary damage and EUR 10,000 in respect of
non-pecuniary damage.
- Within
the time-limit allotted by the Court for submission of just
satisfaction claims, the applicant claimed payment of compensation in
respect of pecuniary and non-pecuniary damage. However, she did not
specify the amounts to be paid.
- The
Government found the initial claims 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, ruling on an equitable basis, as required by Article
41 of the Convention, it awards the applicant EUR 2,800 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant made no claims for costs and expenses. Therefore, the Court
makes no award 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. 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 2,800 (two
thousand eight 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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
