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FIFTH
SECTION
CASE OF
VARLAMOVA v. UKRAINE
(Application
no. 24436/06)
JUDGMENT
STRASBOURG
19 April
2012
This judgment is final but it
may be subject to editorial revision.
In the case of Varlamova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Karel
Jungwiert,
André Potocki, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 24436/06) 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 Raisa Alekseyevna Varlamova (“the
applicant”), on 28 May 2006.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- On
21 June 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
applicant was born in 1932 and lives in
Sevastopol.
- The
circumstances of the case concern a dispute between the applicant and
a State company over the execution of a contract pursuant to which
the latter undertook, in June 1990, to install a tombstone at the
applicant’s son’s grave.
- On
21 August 1999 the applicant instituted civil proceedings in the
Leninsky District Court of Sevastopol against the company for the
alleged failure to comply with the contract.
- On
28 December 2000 the court adopted a judgment, partly allowing the
applicant’s claim. It ordered the company to install the
tombstone or to reimburse the money the applicant had paid for it.
The court noted that although the applicant had missed the statutory
time-limit for lodging her claim, it was justified, in the
applicant’s particular situation, to renew the time-limit.
- On
6 February 2001 the Sevastopol City Court quashed that judgment,
finding that the first instance court had erred
in the assessment of facts and the application of law, and
remitted the case for fresh consideration.
- On
19 June 2001 the Leninsky Court rejected the applicant’s claim
as time-barred. It dismissed the applicant’s request for
renewal of the statutory time-limit as unsubstantiated. The applicant
appealed.
- On
29 January 2002 the Sevastopol City Court of Appeal upheld the
judgment of 19 June 2001. Under the provisions of the Code of Civil
Procedure in force at that time, the applicant had three months to
lodge an appeal in cassation.
- On
4 April 2002 an amendment to the Code of Civil Procedure became
effective providing for one-month, instead of three-month, time-limit
for lodging appeals in cassation.
- The
applicant appealed in cassation on 25 April 2002. The Leninsky Court
refused to refer the cassation appeal to the Supreme Court, finding
that it had been lodged more than one month after the delivery of the
decision of 29 January 2002.
- The
applicant challenged the refusal, arguing that in her case the
previous three-month time-limit had been applicable.
- Subsequently,
for about a year the courts at two levels of jurisdiction (first and
appeal) reconsidered the admissibility of the applicant’s
cassation appeal. In particular, on 3 September 2002 and 23 January
2003 the applicant appealed against the first instance court’s
decisions of 7 August 2002 and 14 January 2003 respectively which
concerned the admissibility of her cassation appeal.
- Eventually,
on 10 April 2003 the cassation appeal was referred to the Supreme
Court.
- On
25 January 2006 the Supreme Court, having examined the appeal in
camera, rejected it as unsubstantiated. It found no ground to annul
the decisions on the merits of the applicant’s case.
- A
copy of the Supreme Court’s decision was sent to the applicant
on 18 April 2006. The applicant received it on 26 April 2006.
- According
to the Government, in the course of the proceeding, the applicant
amended her claim for non-pecuniary damages and submitted additional
petitions. Also, out of thirty-two scheduled hearings, five were
adjourned due to the applicant’s or her representative’s
failure to appear, one hearing was not held because of the
respondent’s failure to appear, one hearing was adjourned due
to the judge’s absence for health reasons. On several occasions
the courts had to renew, at the applicant’s request, the term
for lodging an appeal which resulted in delays of about three months.
- According
to the applicant, she attended all the hearings.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained under Article 6 § 1 of
the Convention about the length of the domestic proceedings in her
case. She also relied on Article 13 in this regard. The Court
considers that the complaint must be examined solely under Article 6
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 the applicant’s argument, stating that
there had been no delays in the course of the proceedings that could
be attributed to the State. According to them, the case was complex
as the courts had to seek various documents from third parties in
order to determine the circumstances of the dispute. The Government
also noted that the applicant contributed to the length of the
proceeding by amending her claim, lodging additional petitions and
failing to appear in court. They also submitted that the periods from
25 April to 3 September 2002 and from 23 January to 10 April
2003, during which the applicant’s appeals concerning the
admissibility of her cassation appeal had been pending, were not be
attributable to the State.
A. Admissibility
- The
Court notes that the complaint about the length of the proceedings is
not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible
on any other grounds. It 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 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).
24 The
Court notes that the period to be taken into consideration began on
21 August 1999 and ended on 26 April 2006, when the applicant was
served with the final decision (see Widmann v. Austria, no.
42032/98, § 29, 19 June 2003, and Gitskaylo v. Ukraine,
no. 17026/05, § 34, 14 February 2008). It thus lasted six years
and eight months for three levels of jurisdiction. The Court notes
that the proceedings were pending during the periods, to which the
Government referred (see paragraph 21 above). Thus, they might not be
excluded from the overall period to be taken into consideration.
However, a question of responsibility for any delays during these
periods will be examined below.
- The
Court notes that the proceedings concerned a dispute over the
execution of a contract which was not legally or factually complex.
- The
Court acknowledges that the parties and in particular the applicant
somewhat contributed to the length of the proceedings. It however
considers that the parties’ behaviour alone cannot justify the
overall length of the proceedings.
- The
Court takes note of the particularly lengthy delay in the proceedings
after the applicant lodged her cassation appeal (see paragraphs 12-16
above). It took the courts about four years to determine the appeal.
The Court considers that primary responsibility for the delay rested
with the domestic authorities because the applicant complied with the
rules of procedure and could not be blamed for not lodging her
cassation appeal within the shorter period of one month (see Melnyk
v. Ukraine, no. 23436/03, §§ 28-31, 28 March 2006,
in which the Court found that the retroactive application of
procedural limitations in similar circumstances had undermined the
principle of legal certainty and had been contrary to the rule of
law). This was confirmed by the Supreme Court that eventually
examined the appeal on the merits (see paragraph 16 above).
- In these circumstances and having regard to its
case-law on the subject (see Frydlender,
cited above), the Court finds 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.
II. OTHER COMPLAINTS
- Relying
on Articles 1, 6 and 14 of the Convention, the applicant complained
about the outcome and unfairness of the proceedings. She also
complains about a violation of Article 1 of Protocol No. 1, stating
that she had been deprived of her property because of the respondent
company’s failure to install the tombstone.
- 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 (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
applicant claimed 180,000 Ukrainian hryvnias
(UAH)
in respect of pecuniary and UAH 20,000
in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards her EUR 900 under that head.
B. Costs and expenses
- The
applicant also claimed UAH 73,50
for the costs and expenses incurred before the domestic courts, and
UAH 357,06
for those incurred before the Court.
- The
Government contested some of these claims.
- 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
sum of EUR 33 for the proceedings before the Court.
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
1. Declares the complaint under Article 6 § 1
of the Convention about the excessive length of the proceedings
admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant,
within three months, the following amounts, to be converted into the
national currency at the rate applicable at the date of settlement:
(i) EUR
900 (nine hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
33 (thirty-three euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy
Registrar President
