FIFTH SECTION

CASE OF MARCHENKO v. UKRAINE
(Application no. 24857/07)

JUDGMENT

STRASBOURG

10 February 2011

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

In the case of Marchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mirjana Lazarova Trajkovska, President,
	Zdravka Kalaydjieva,
	Julia Laffranque, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 18 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24857/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Ms Lyudmyla Ivanivna Marchenko, Ms Svitlana Viktorivna Marchenko (Matsevitska) and Ms Bozhena Viktorivna Marchenko (“the applicants”), on 1 June 2007.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  On 5 May 2009 the Court decided to give notice of the complaint concerning the length of the proceedings to the Government. In accordance to Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
4.  The applicants were born in 1963, 1983 and 1988, respectively, and live in Makariv. Ms Lyudmyla Marchenko is the mother of the other two applicants.
5.  From 1987 onwards Ms Lyudmyla Marchenko lived in a house together with Mr M., her husband, Mrs O.N., her mother in law, and Ms Svitlana Marchenko. In 1988 Ms Bozhena Marchenko was born. In 1989 Mrs O.N. acquired a property title over the said house. In 1992 Mr M. died. In 2000 Mrs O.N. concluded a deed of gift with Mr O.O. and transferred the ownership over the house to him.
6.  In August 2000 Ms Lyudmyla Marchenko instituted proceedings in the Makariv Court against Mrs O.N. and Mr O.O. on her own behalf and on behalf of the other two applicants seeking division of the house and partial invalidation of the deed of gift.
7.  On 20 October 2000 the court ordered a forensic examination and suspended the proceedings.
8.  Having received the results of the examination on 3 May 2001, the court resumed the proceedings on 28 May 2001.
9.  On 6 August 2001 the court found in part for the applicants.
10.  On 31 August 2001 Mrs O.N. and Mr O.O. appealed.
11.  On 12 October and 14 December 2001 the Kyiv Regional Court of Appeal returned the appeal to the first instance court due to procedural shortcomings. On 6 November and 16 December 2001 the first instance court allowed the appellants time to rectify their appeal. Finally, on 13 February 2002 the first instance court rejected that appeal without examination due to its procedural shortcomings.
12.  On 21 May 2002 the court of appeal quashed that decision and remitted the case to the first instance court for a decision on the admissibility of the appeal lodged by Mrs O.N. and Mr O.O.
13.  Following a decision on admissibility, on 1 July 2002 the Makariv Court sent the appeal to the court of appeal for consideration.
14.  On 11 October 2002 the Kyiv Regional Court of Appeal quashed the judgment of 6 August 2001 and remitted the case to the Makariv Court for a fresh consideration.
15.  On 18 April 2003 the court suspended the proceedings in the case upon the applicants' request.
16.  On 22 August 2003 the Makariv Court ordered resumption of the proceedings.
17.  On 13 February 2004 the court found in the applicants' favour.
18.  On 10 March 2004 Mrs O.N. and Mr O.O. appealed. On 4 June 2004 the court of appeal quashed the first instance court judgment and found against the applicants.
19.  On 5 July 2004 the applicants appealed in cassation.
20.  On 9 November 2006 the Supreme Court rejected that appeal as unsubstantiated.
21.  Out of sixteen hearings in the case four were adjourned upon the applicants' request or due to their failure to appear, four were adjourned upon the respondents' requests or due to their failure to appear, and three were adjourned due to the necessity to call a witness or to examine proof or information.
THE LAW
I.  COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS UNDER ARTICLE 6 § 1 OF THE CONVENTION
22.  The applicants 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, 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...”
A.  Admissibility
23.  The Court notes that it 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
24. The Government submitted that the proceedings had been complex because they involved many parties and the courts had examined events which had occurred more than thirty years ago. In the Government's view, the applicants contributed to the protraction of the proceedings by requesting suspension of the proceedings and their failure to appear before the court. The Government contended that there had been no significant delays attributable to the first instance court and the court of appeal, while the length of the proceedings before the Supreme Court had been justified by the latter's heavy workload. The Government emphasized that the latter problem had been solved by introducing, on 22 February 2007, amendments into relevant domestic legislation.
25.  The applicants disagreed.
26.  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).
27.  The period to be taken into consideration began in August 2000 and ended on 9 November 2006. It thus lasted for about six years and three months for three levels of jurisdiction.
28.  At the outset, the Court notes that the applicants contributed to the protraction of the proceedings by failing to attend some of the hearings, by requesting suspension of the proceedings and by lodging appeals. However, the Court does not share the Government's view that the primary responsibility for the delays in the proceedings rests with the applicants.
29.  The Court notes that the subject matter of the dispute was not complex as it mainly concerned a property title over a house which could have been established on the basis of the documentary evidence. The Court also notes that the proceedings in question were of undeniable importance for the applicants as they concerned ownership of the house which was their main place of residence.
30.  The Court observes that the case was twice remitted to a lower court for a fresh consideration. In this regard the Court recalls that since remittal is usually ordered because of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, §§ 46, 25 November 2003). The Court also observes that it took the domestic authorities about eleven months to decide on admissibility of the appeal lodged by Mrs O.N. and Mr O.O. (see §§ 10-14). The Court further observes that the legislative amendments referred to by the Government were introduced on 22 February 2007, after the proceedings in the present case had ended.
31.  The Court concludes that, given the undeniable importance of the proceedings at issue for the applicants, the domestic authorities did not act with a due expedition while examining their claims and the overall duration of the proceedings exceeded what may be considered “reasonable”. Accordingly, there has been a breach of Article 6 § 1.
II.  OTHER COMPLAINTS
32.  The applicants complained under Articles 6 § 1 and 13 of the Convention about the unfavourable outcome of the proceedings as the domestic courts rejected their claims.
33.  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.
34.  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
35.  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.”
36.  The applicants lodged their claims for just satisfaction after the prescribed time-limit. Therefore, the Court considers that there is no call to award them any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint under Article 6 § 1 of the Convention 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.
Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mirjana Lazarova Trajkovska
	Deputy Registrar	President