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MOROZ AND OTHERS v. UKRAINE - 36545/02 [2006] ECHR 1159 (21 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1159.html
Cite as:
[2006] ECHR 1159
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FIFTH
SECTION
CASE OF MOROZ AND OTHERS v. UKRAINE
(Application
no. 36545/02)
JUDGMENT
STRASBOURG
21
December 2006
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 Moroz and Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 27 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 36545/02) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by
8 Ukrainian nationals, Mr Ivan Vasiliyevich Moroz, Mrs Ulyana
Andreyevna Nikulina, Mr Semen Grygoryevich Shehali, Mr Yuriy
Ivanovich Mykhailenko, Mrs Yevgeniya Borisovna Shyryayeva,
Mr Vyacheslav Vasiliyevich Parhomenko, Mr Anatoliy Dmitriyevich
Dobrovanov, Mrs Valentina Ivanovna Polovets (“the applicants”),
on 8 August 2002.
The
applicants were represented by Ms N. Tkachenko, a
lawyer practising in Kyiv. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaitsev.
On
13 December 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicants, Mr Moroz, Mrs Nikulina, Mr Shehali, Mr Mykhailenko,
Mrs Shyryayeva, Mr Parhomenko, Mr Dobrovanov, and Mrs Polovets
are Ukrainian nationals, who were born in 1926, 1937, 1930, 1934,
1940, 1968, 1926, and 1931, respectively. Mrs Polovets lives in the
town of Boyarka and the others live in Kyiv.
In
1991 the applicants gave the ATEK Company certain amounts of money in
order that it could buy cars for them. The company concluded a
contract with a third person, pursuant to which the latter undertook
to provide the applicants with the cars.
In
July 1994 the Ukrainian Association of Consumers' Organisations,
acting in the interests of the applicants, together with thirty other
persons, instituted proceedings in the Leningradskyy District Court
of Kyiv (the “Leningradskyy Court”) against the company
for failure to fulfil its contractual obligations, namely, to provide
the applicants and other persons concerned with the cars. The company
denied that it had any contractual obligations in this respect.
On
23 August 1994 the court ordered an expert examination and
suspended the proceedings. On 15 November 1994 the expert report
was completed and the proceedings were resumed.
In
1995 the applicants, together with twenty-eight other persons, lodged
with the same court their separate claims in respect of the subject
matter of the proceedings. The plaintiffs sought the recovery of the
amounts which they had paid to the company and compensation.
On
27 April 1995 the court ruled against the applicants, finding no
fault on the part of the company.
On
12 July 1995 the Kyiv City Court (the “Kyiv Court”)
quashed this decision and remitted the case for a fresh
consideration. It found that the first instance court had failed to
take into consideration all the circumstances of the case.
On
8 April 1996 the court ordered an additional expert
examination which was completed on 10 April 1996.
On
18 June 1996 the Leningradskyy Court found in part for the
applicants. On 4 November 1996 the same court adopted a supplementary
decision, partly changing the operative part of its judgment of
18 June 1996, which still remained favourable to the
applicants. These decisions were not appealed against and became
final.
On
28 February 1997 the President of the Kyiv Court lodged a protest
with the Presidium of that court, seeking initiation of
supervisory review proceedings in the case. On 25 March 1997 the
Presidium allowed the protest, quashed the decisions of 18
June and 4 November 1996, and remitted the case for a fresh
consideration. It held that the first instance court had failed to
establish the legal nature of the contract between the applicants and
the company.
On
an unspecified date Mr N., one of the plaintiffs in the case,
requested his claims to be disjoined. On 19 November 1997
the Leningradskyy Court allowed his request.
On
8 December 1997 the Leningradskyy Court found in part for Mr N.
This decision was not appealed against and became final.
On
11 March 1999 the Deputy President of the Supreme Court lodged a
protest with the Presidium of the Kyiv Court, seeking
initiation of supervisory review proceedings in the case. On 29 March
1999 the Presidium allowed the protest, quashed the judgment
of 8 December 1997, and remitted the case for a fresh consideration.
It mostly reiterated the reasons for its decision of 25 March 1997.
On
an unspecified date Mr N. joined the original proceedings as a
co-plaintiff.
In
the course of the proceedings between 11 September 1997 and
30 June 2000 the applicants amended the claims twice.
Of
around thirty-three hearings held during the aforementioned period
seven were adjourned due to the absence or at the request of the
applicants' representatives. Thirteen hearings were adjourned due to
the absence of the representatives of the defendant company and four
hearings were postponed because of the witnesses' failure to appear.
Five hearings were not held due to the absence of the judge.
On
21 February, 14 March, 12 April, and 26 May 2000
the court fined the representatives of the defendant company for
their repeated failure to appear before the court. One of the
witnesses called by the court was fined twice for the same reasons.
On
30 June 2000 the Leningradskyy Court found in part for the
applicants. This decision was not appealed against and became final.
On
19 December 2000 the Deputy President of the Supreme Court lodged a
protest with the Presidium of the Kyiv Court, seeking
initiation of supervisory review proceedings in the case. On 15
January 2001 the Presidium allowed the protest, quashed the
judgment of 30 June 2000, and remitted the case for a fresh
consideration. It held that the first instance court had wrongly
applied the law.
On
6 June 2001 the President of the Leningradskyy Court
requested the President of the Kyiv Court to remit the case to the
Kyiv Court, as this case had been reconsidered by the Leningradskyy
Court on four occasions.
On
the same day the President of the Kyiv Court granted the request of
the President of the Leningradskyy Court and remitted the case to a
judge of the Kyiv Court for a fresh consideration.
On
30 November 2001 the Kyiv City Court of Appeal (the former
Kyiv City Court), acting as a court of first instance, scheduled a
hearing for 14 December 2001, which was not held because of
the judge's illness.
Between
14 December 2001 and 28 January 2002 there were
six hearings held, out of which two were adjourned at the request of
the defendant company and one was postponed due to the submission of
the amended claims by the applicants' representative.
On
28 January 2002 the Kyiv City Court of Appeal found against the
applicants.
On
28 April 2002 the applicants' representative lodged an appeal in
cassation.
On
29 April 2002 the Ukrainian Association of Consumers' Organisations
and Mr Shehali, acting in the interests of all the applicants
and other claimants, lodged a separate appeal in cassation.
On
24 May 2002 the Kyiv City Court of Appeal granted the applicants
a time-limit to rectify the shortcomings of the appeal in cassation
of 28 April 2002 and to pay the court fees.
On
7 and 11 June 2002 three of the applicants, Messrs Shehali,
Mykhailenko and Parhomenko, submitted to the court copies of the
receipts, conforming that they had paid the court fees in respect of
the latter appeal in cassation.
On
12 June 2002 the Kyiv City Court of Appeal rejected the appeal
in cassation lodged by the applicant's representative on 28 April
2002 for failure to pay the court fees.
On
24 June 2002 the same court sent the appeal in cassation
lodged on 29 April 2002 by the Ukrainian Association of
Consumers' Organisations and Mr Shehali, acting in the interests
of all the applicants and other claimants, to the Supreme Court.
On
8 October 2002 the panel of three judges of the Supreme
Court decided to submit the latter appeal for consideration by the
Civil Chamber of the Supreme Court.
On
10 September 2003 the Chamber quashed the decision of 28 January
2002 and remitted the case for a fresh consideration.
The
Kyiv City Court of Appeal, sitting in a different composition, held
fifteen hearings. Six hearings were postponed because of the absence
of the applicants' representative or at his request, while three
hearings were adjourned at the request of the defendant company.
In
the course of the proceedings before that court, the applicants
modified their claims twice.
On
15 April 2004 the Kyiv City Court of Appeal found in part for the
applicants. It held that the company had been under the obligation to
provide the plaintiffs with the cars, which the company had failed to
fulfil. The court ordered the company to pay each plaintiff
UAH 49,180.05.
On
14 and 19 May 2004, respectively, the defendant company and
the applicants appealed in cassation.
On
8 February 2006 the Supreme Court rejected the parties'
appeals in cassation.
THE LAW
I. SCOPE OF THE CASE
The
Court notes that, after the communication of the case to the
respondent Government, the applicants introduced new complaints,
alleging a violation of Article 1 of Protocol No. 1 on
account of the delay in the enforcement of the decision of the Kyiv
City Court of Appeal of 15 April 2004.
In
the Court's view, the new complaints are not an elaboration of the
applicants' original complaints to the Court about the length of the
proceedings, lodged approximately four years earlier and on which the
parties have commented. The Court considers, therefore, that it is
not appropriate now to take these matters up separately (see Piryanik
v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
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 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
Government maintained that the applicants had not exhausted the
domestic remedies available to them, in that they had failed to lodge
with the higher courts complaints about the first instance court's
alleged failure to consider the case in due time. The Government
stated that such complaints might have resulted in disciplinary
proceedings against the first instance judges, dealing with the case.
The applicants disagreed.
The
Court recalls that the purpose of Article 35 § 1 of the
Convention is to afford Contracting States the opportunity to prevent
or put right the violations alleged against them before those
allegations are submitted to the Court. However, the only remedies to
be exhausted are those which are effective. To be effective the
remedy must be capable of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
has already occurred (see, mutatis mutandis, Krasuski v.
Poland, no. 61444/00, § 66, ECHR 2005–...).
The
Court notes that the Government did not show that in the present case
recourse to the disciplinary proceedings against judges could either
afford the applicants compensation for any alleged breach of their
right to a hearing within a reasonable time or speed up the
examination of the case.
In
these circumstances, the Court concludes that the applicants were
absolved from pursuing the remedy invoked by the Government and have
therefore complied with the requirements of Article 35 § 1.
The
Court concludes that this part of 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
1. Period to be taken into consideration
The
Government submitted that part of the proceedings was outside the
Court's competence ratione temporis.
The
Court notes that the period to be taken into consideration only began
on 11 September 1997, when the recognition by Ukraine of the right of
individual petition took effect. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. Thus, the
proceedings, which started in July 1994 and ended on 8 February 2006,
excluding the intervals between 4 November 1996 and
25 March 1997, 27 September 2000 and
15 January 2001, when no proceedings were pending, lasted
over ten years and seven months (see Yemanakova v. Russia, no.
60408/00, § 41, 23 September 2004, and Efimenko v.
Ukraine, no. 55870/00, § 51, 18 July 2006).
The period falling within the Court's competence ratione temporis
lasted around eight years and one month (from 11 September 1997
until 8 February 2006) for three levels of jurisdiction.
2. Reasonableness of the length of the proceedings
The
Government contended that the case was complicated because of the
large number of the plaintiffs and due to the fact that the
applicants had modified their claims twelve times.
The
Government further stated that there were no significant periods of
inactivity attributable to the State. They submitted that some
periods of delay in the proceedings had been attributable to the
applicants and that this had caused general delay of about seven
months. They maintained that there had been significant delays (for a
total of around one year) attributable to the defendant company, for
which its representatives were fined by the court on four occasions.
The
applicants disputed the Government's submissions. In particular, they
maintained that the case was not complicated, as the claims of all
the plaintiffs concerned the same legal and factual issues. They
further stated that the delay in the proceedings was caused due to
the numerous reconsiderations of their case.
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).
As
to the question of the complexity of the present dispute, the Court
observes that the courts were to establish whether there had been
contractual relations between the plaintiffs and the defendant
company and whether the company had complied with its contractual
obligations. The courts heard two witnesses and based their decisions
largely on the written evidence submitted by the parties. Although
the case might have been somewhat complicated by the large number of
the plaintiffs and their numerous modifications of the claims, the
Court observes that the plaintiffs' claims concerned similar facts
and the same legal issues. Therefore, the Court considers that the
subject matter of the litigation at issue could not be considered
particularly complex.
The
Court further notes that the proceedings were of some importance for
the applicants. Nonetheless, the Court does not find any ground for
the domestic courts to deal with this case with particular urgency
vis-à-vis other cases pending before them.
As
to the applicants' behaviour throughout the proceedings, the Court
considers that there are some periods of delay which could be
attributed to them, while there is no evidence before the Court to
suggest that the proceedings were particularly lengthy exclusively
due to their behaviour.
The
Court notes that there were some substantial periods of inactivity,
in particular between 15 January and 30 November 2001,
8 October 2002 and 15 October 2003, 19 May 2004
and 8 February 2006 (see paragraphs 22-25, 34-35, and 39-40
above), for which the Government have not put forward any
explanation. Accordingly, the Court finds that the State authorities
were responsible for the delay in the proceedings of more than three
years.
Furthermore,
the Court observes that the case was reconsidered on four occasions.
Therefore, it considers that the delay in the proceedings was also
caused by the repeated re-examination of the case. Although the Court
is not in a position to analyse the quality of the case-law of the
domestic courts, it observes 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 (Wierciszewska v. Poland, no. 41431/98,
§ 46, 25 November 2003). Moreover, it is the role of the
domestic courts to manage their proceedings so that they are
expeditious and effective (see, as a recent authority, Scordino v.
Italy (no. 1) [GC], no. 36813/97, § 183, ECHR
2006 ...).
In
sum, having regard to the circumstances of the instant case as a
whole, the Court concludes that there was unreasonable delay in
disposing of the applicants' case.
There
has accordingly been a violation of Article 6 § 1 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants further complained that they had no effective
domestic remedies for their complaint about the length of the
proceedings. They invoked Article 13 of the Convention, which
provide as follows:
“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.”
A. Admissibility
The Court refers to its reasoning in relation to
Article 35 § 1 (see paragraphs 46-48 above),
which is equally pertinent to the applicants' Article 13 claim.
Consequently, the Court finds that this complaint is not manifestly
ill-founded or indeed inadmissible on any other ground cited in
Article 35 of the Convention. It must therefore be declared
admissible.
B. Merits
The
Government contended that the applicants had had effective channels
of complaint on the same basis that they had argued that the
applicants had not exhausted domestic remedies in respect of their
complaint about the length of the proceedings.
The
Court refers to its findings (at paragraphs 47-49 above) in the
present case concerning the Government's argument regarding domestic
remedies. For the same reasons, the Court concludes that the
applicants did not have an effective domestic remedy, as required by
Article 13 of the Convention, to redress the damage created by the
delay in the present proceedings. Accordingly, there has been a
breach of this provision.
IV. OTHER COMPLAINTS
The
applicants further complained under Article 6 § 1
of the Convention about the unfairness of the proceedings. The
applicants alleged that the judges of the first instance courts,
including the Kyiv City Court of Appeal, who had dealt with their
case between March 1999 and January 2002, had not been independent
and impartial, as they had been bound by the instructions contained
in the decisions of the Presidium of the Kyiv City Court and the
conclusions contained in the protests of the Deputy President
of the Supreme Court of 11 March 1999 and 19 December 2000.
The
applicants also complained that the decision of the Kyiv City Court
of Appeal of 28 January 2002 violated their right to peaceful
enjoyment of their possessions. They invoked Article 1 of
Protocol No. 1.
The
Court observes that all the decisions of the first instance courts
adopted between March 1999 and January 2002 have been quashed, and in
particular the decision of the Kyiv City Court of Appeal of 28
January 2002 was annulled by the Supreme Court on 10 September 2003
(see paragraphs 21, 22, 27, and 34 above). The Court further notes
that there are no grounds to doubt that the
proceedings as a whole were fair within the meaning of Article 6.
Therefore, this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
V. 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 UAH 49,180.05
each in respect of pecuniary damage. They also submitted that they
had suffered some non-pecuniary damage because of the length of the
proceedings. However, the applicants were not able to specify the
amounts of their claims and left the matter to the Court's
discretion.
The
Government did not express an opinion on the matter.
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, it awards each applicant EUR 1,200 in respect of
non pecuniary damage.
B. Costs and expenses
Messrs
Shehali, Mykhailenko and Parhomenko also claimed UAH 228
each for the costs and expenses incurred before the domestic courts.
Mr Mykhailenko also claimed UAH 482
for the costs of correspondence and translations incurred in the
proceedings before the Court.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claims
for costs and expenses in the domestic proceedings and considers it
reasonable to award Mr Mykhailenko the requested sum of EUR 80
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
Declares the applicants' complaint under
Article 6 § 1 of the Convention concerning the
excessive length of the proceedings and their complaint under
Article 13 of the Convention admissible, and the remainder of
the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, each applicant EUR 1,200 (one thousand two hundred
euros) in respect of non-pecuniary damage and Mr Mykhailenko
EUR 80 (eighty euros) for costs and expenses, plus any tax that
may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount[s] 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'
claims for just satisfaction.
Done in English, and notified in writing on 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
