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FIFTH
SECTION
CASE OF
SEMENYUK v. UKRAINE
(Application
no. 9476/06)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment is final but it may be subject to editorial revision
In the case of Semenyuk 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 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 9476/06) 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 Alla Vitaliyivna Semenyuk (“the applicant”),
on 14 February
2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
24 November 2009 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
- The
applicant was born in 1977 and lives in Rivne.
- On
10 July 1998 M.B., a private person, lodged a claim with the Rivne
Court requesting a contract by which a flat had been sold to him by
the applicant and her husband to be declared valid.
- In
November 1998 the applicant lodged a counter-claim seeking the
eviction of M.B. and M.A. from the flat.
- On
3 December 1998 the Rivne Court allowed the M.B.’s claims. It
found the applicant’s counter-claim unsubstantiated and
dismissed them.
- On
15 March 1999 the Rivne Regional Court quashed the judgment of 3
December 1998 and remitted the case for fresh consideration finding
that the first-instance court had failed to examine all the aspects
of the case.
- On
22 December 2004 the Rivne Court, hearing the case in the presence of
the applicant and her lawyer, allowed the claims of M.B. and rejected
the applicant’s counter-claim. It found that the applicant and
her son had moved from the disputed flat in May 1998 to live with her
parents and she had voluntarily transferred the flat to M.B., though
subsequently she refused to have the contract certified by a notary
due to a disagreement with her husband.
- On
17 January 2005 the applicant and her lawyer appealed against the
judgment of 22 December 2004.
- On
27 April 2005 the Rivne Regional Court of Appeal heard the case in
the presence of the applicant. The applicant requested the court to
postpone the examination of her case as her lawyer could not
participate in that hearing. The court rejected her request,
dismissed the applicant’s appeal and upheld the judgment of 22
December 2004.
- On
15 August 2005 the Supreme Court rejected the applicant’s
appeal in cassation.
- In
the course of the proceedings the first-instance court scheduled
thirty-one hearings, out of which two were not held because of the
applicant’s failure to attend, one was adjourned for nine days
to allow the applicant to study the case-file and one was adjourned
for twenty-three days on the applicant’s request. Nineteen
hearings were not held because of the other parties’ failure to
appear or on their request for adjournment of the hearings. Between
May 2000 and December 2002 there were five hearings scheduled, of
which one was held. In 2003 there were six hearings scheduled and one
held.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF THE 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, 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
- The
Court 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
- The
applicant complained that the length of the proceedings had been
excessive.
- The
Government submitted that the proceedings concerned a complex issue
and had been eventually complicated by the applicant’s
counter-claim. They further maintained that the applicant had
contributed to the length of the proceedings by lodging appeals and
requests for adjournment and by failing to appear before the
first-instant court.
- The
Court notes that the period to be taken into consideration began on
10 July 1998 and ended on 15 August 2005. It thus lasted seven years
and one month for three levels of jurisdiction.
- 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 facts of the present case, the Court notes that after the
remittal of the case for fresh examination it took the first-instance
court five years and nine months to deliver a judgment in the case
(see paragraphs 8 and 9 above). However, there is nothing to suggest
that the applicant was responsible for such a delay or that it was
due to the alleged complexity of the case. In that latter respect,
the Court notes that the case concerned the validity of a
straightforward private contract and did not involve any complex
factual or legal issues. Furthermore, the Court reiterates that it is
the role of the domestic courts to manage their proceedings so that
they are expeditious and effective (see Moroz and Others v.
Ukraine, no. 36545/02, § 60, 21 December 2006). The
Court finds that the State authorities bear the
primary responsibility for the excessive length of the proceedings in
the present case.
- 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; Vashchenko
v. Ukraine, no. 26864/03, § 50,
26 June 2008, Pysatyuk v.Ukraine, no. 21979/04, §§
24, 30-34, 16 April 2009; and Popilin v. Ukraine, no.
12470/04, §§ 24-31, 16 April 2009).
- 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 of the
Convention.
II. OTHER COMPLAINTS
- The
applicant complained of a violation of Article 6 § 1 and
Article 8 § 1 of the Convention and Article 1 of Protocol
No. 1 on account of the outcome of the proceedings in
respect of her and her minor son. She
also alleged unfairness of the proceedings and a violation of Article
6 § 3 (c) in that the court of appeal had held its hearing in
the absence of her lawyer.
- 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.
- 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
- 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 300,000
Ukrainian hryvnias in respect of pecuniary and non-pecuniary damage.
She also requested to be provided with a dwelling.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged as well as the applicant’s
request to be provided with a dwelling; it therefore rejects these
claims. On the other hand, ruling on an equitable basis, it awards
the applicant EUR 1,200 in respect of non-pecuniary damage.
B. 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 complaint under Article 6 § 1
of the Convention of 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;
- 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, 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 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 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
