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FIFTH
SECTION
CASE OF SVERCHKOV AND SVERCHKOVA v. UKRAINE
(Application
no. 55865/07)
JUDGMENT
STRASBOURG
10
November 2011
In the case of Sverchkov and Sverchkova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 55865/07) against Ukraine
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two
Ukrainian nationals, Mrs Gennadiy Fyodorovich Sverchkov and Mrs Alla
Aleksandrovna Sverchkova (“the
applicants”), on 27 November 2007.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Valeria Lutkovska, of the Ministry of Justice.
- On
27 September 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born, respectively, in 1949 and 1946
and live in Zaporizhzhya.
A. The first set of the proceedings
- On
18 September 2000 Mrs F. lodged a claim with the Leninskyy District
Court of Zaporizhzhya (“the Leninskyy Court”) against the
applicants, requesting it to determine how the parties should use
their adjacent plot of land.
- On
11 January 2002 the court delivered a judgment. On 8 April 2002 the
Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”)
upheld it. On 16 October 2002 the Supreme Court quashed both
decisions and remitted the case for fresh consideration.
- On
11 July 2005 the Leninskyy Court delivered a judgment. On 8 December
2005 the Court of Appeal amended it. On 13 December 2006 the Supreme
Court quashed both decisions and remitted the case for fresh
consideration.
- On
19 October 2007 the Leninskyy Court rejected the claim of Mrs F. as
unsubstantiated. On 20 May and 26 November 2008, respectively, the
Court of Appeal and the Supreme Court upheld that judgment.
-
According to the Government, in the course of the proceedings eight
hearings were adjourned due to the applicants’ or all parties’
absence or following the applicants’ requests. The applicants
disagreed stating that they had attended all hearings. Nineteen
hearings were adjourned mainly due to the absence of other parties,
absence of a judge or an expert or because the courts needed to
collect additional documents. Four forensic examinations were ordered
and lasted for about one year.
B. The second set of the proceedings
- On 10 October 2000 the applicants lodged a claim with
the Leninskyy Court against Mrs F., seeking the elimination of
obstacles in using the impugned plot of land. On an unspecified date
Mr and Mrs E. joined the proceedings as co-respondents.
- Between
5 October 2001 and 16 January 2006, 14 November 2006 and 31 January
2007 and between 22 February 2007 and 5 June 2008 the proceedings
were suspended pending the outcome of the first set of the
proceedings. Between 1 June and 14 October 2006 the proceedings were
suspended with a view to allowing the successors of Mr and Mrs E.,
who had died in January and April 2006, to take part in the case.
- On
25 June 2009, following a friendly settlement reached by the parties,
the Leninskyy Court discontinued the proceedings. The applicants did
not appeal against that decision.
- According
to the Government, in the course of the proceedings three hearings
were adjourned due the applicants’ or all parties’
absence or following the applicants’ request. Two hearings were
adjourned due to the respondent’s absence. One forensic
examination was ordered and lasted for about four months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Articles 6 § 1
and 13 of the Convention about the excessive length of the
proceedings in their cases. The complaint falls to be examined solely
under Article 6 § 1 of the Convention, which reads, in so far as
relevant, as follows:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal ...”
- The
Government contested that argument stating that the examination of
the cases had been complicated by the number of parties in the
proceedings and that the applicants had contributed to the length.
- The
periods to be taken into consideration are as follows. The
proceedings in the first set, which began on 18 September 2000 and
ended on 26 November 2008, lasted for about eight years and two
months in three judicial instances. The proceedings in the second
set, which began on 10 October 2000 and ended on 25 June 2009,
lasted for about eight years and eight months in one judicial
instance.
A. Admissibility
- The
Court notes that the complaints are not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
19. Turning
to the circumstances of the cases, the Court considers that neither
their complexity nor the conduct of the applicants, who somewhat
contributed to the overall length (see paragraphs 9 and 13 above) can
explain their overall duration. On the other hand, in respect of the
first set of the proceedings the Court notes two remittals of the
case for fresh examination and the period of the examination of the
case by the first instance court during the first
re-consideration of the case (see paragraphs 6 and 7 above) as well
as nineteen adjournments of the hearings (see paragraph 9 above). In
respect of the second set, the Court notes that the major delays were
caused by three suspensions of the proceedings pending the outcome of
the first set of the proceedings (see paragraph 11 above), which in
turn lasted for eight years and two months. It considers that the
responsibility for these delays rested
with the domestic courts (see, mutatis
mutandis, Fedina
v. Ukraine, no. 17185/02, § 80,
2 September 2010; and Doroshenko v.
Ukraine, no. 1328/04, § 41, 26
May 2011).
- 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).
- 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 both sets of proceedings was
excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a breach of Article 6 §
1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
22. The
applicants also complained under Articles 6 § 1 and 13 of the
Convention about the unfavourable outcome of the proceedings and
raised complaints under Article 8 of the Convention and Article 1 of
Protocol No. 1 on account of such outcome.
- Having carefully examined the
applicants’ 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 (a) 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
applicants claimed 33,000 Ukrainian hryvnias
(UAH) in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicants must have
sustained non pecuniary damage on account of the violation found
and considers it reasonable to award the full sum claimed.
B. Costs and expenses
- The
applicants also claimed UAH 7,049.70 for the
costs and expenses incurred before the domestic courts and UAH
615.76
for the correspondence and photocopying expenses incurred in the
proceedings before the Court, having supporting these claims by
documents.
- The
Government contested the claims for the costs and expenses before the
domestic courts as well as the claim for photocopying expenses before
the Court. In respect of the correspondence expenses before the
Court, they left the matter to the Court’s discretion.
- Regard
being had to the documents in its possession and to its
case law, the Court rejects the claim for costs and
expenses in the domestic proceedings and considers it reasonable to
award the full sum claimed for the correspondence and photocopying
expenses before it.
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 first and the second sets of proceedings admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the first and the second sets of proceedings;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months, EUR 2,895 (two thousand eight hundred
ninety-five euros) in respect of non-pecuniary damage and EUR 54
(fifty-four euros) in respect of costs and expenses, to be converted
into the Ukrainian hryvnia at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan
M. Zupančič, Deputy
Registrar President
