British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
SVISTUN v. UKRAINE - 9616/03 [2007] ECHR 518 (21 June 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/518.html
Cite as:
[2007] ECHR 518
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF SVISTUN v. UKRAINE
(Application
no. 9616/03)
JUDGMENT
STRASBOURG
21 June
2007
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 Svistun v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 29 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 9616/03) 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, Mr Ivan Vasilyevich Svistun (“the
applicant”), on 22 February 2003. After the
death of the applicant, his daughter, Mrs Valentina
Ivanovna Svistun, expressed her wish to pursue the application.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
On
13 March 2006 the Court
decided to grant the application priority and to communicate the
complaint concerning the length of the proceedings and the lack of
remedies in that respect 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
applicant was born in 1929 and lived in the town of Volnyansk,
Zaporizhzhia region. He died on 29 December 2004. On 24 August 2006,
the applicant's daughter Mrs Valentina Ivanovna Svistun informed the
Court that she wished to pursue the application.
In November 1994 the applicant instituted civil
proceedings against the agricultural collective enterprise “Ukraina”
seeking to withdraw his share (пай)
estimated by him as an equivalent of UAH 22,000 (approximately EUR
3,200).
On
25 April 1997 the Volnyansky District Court (hereinafter “the
District Court”) found for the applicant.
On
15 July 1997 the Zaporizhzhia Regional Court quashed this decision
and remitted the case for a fresh consideration.
On
15 April 1998 the District Court, upon its own initiative, ordered a
forensic accounting examination in the case for specifying the value
of the applicant's share.
On
7 April 1999 the hearings were resumed.
Between
June 1999 and March 2001 all hearings scheduled were adjourned eleven
times due to the expert's failure to attend the hearings, two times
due to the absence of the court's secretary and eight times due to
the absence of the respondent's representative.
On
8 November 2001 the Volnyansky District Court found against the
applicant.
On
25 March and 11 October 2002 the Zaporizhzhia Regional Court of
Appeal and the Supreme Court, respectively, upheld this decision.
THE LAW
I. AS TO THE LOCUS STANDI OF MRS SVINSTUN
The
Court notes firstly the fact of the death of Mr Svistun, and the wish
of his daughter to pursue the proceedings he initiated.
In
the circumstances of the present case, the Court considers that the
daughter of the applicant has standing to continue the present
proceedings in his stead. However, reference will still be made to
the applicant throughout the ensuing text.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF 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 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 the applicant's 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
1. Period to be taken into consideration
The applicant argued that the period in question began
in 1994, when he lodged her claim with the domestic courts.
The
Government maintained that the period to be taken into consideration
began only on 11 September 1997, when the recognition by
Ukraine of the right of individual petition took effect.
The Court notes that part of the proceedings
complained of relates to the period prior to 11 September 1997, the
date on which the Convention came into force in respect of Ukraine.
After that date, the proceedings lasted until 11 October 2002, when
the ruling of the Supreme Court was adopted. The
length of the proceedings within the Court's competence was,
therefore, so far, five years and one month. However, in
assessing the reasonableness of the time that elapsed after 11
September 1997, account must be taken of the state of proceedings on
that date (see Milošević v. “the former Yugoslav
Republic of Macedonia”, no. 15056/02, § 21,
20 April 2006; Styranowski v. Poland, no. 28616/95,
§ 46, ECHR 1998-VIII; Foti and Others v. Italy,
judgment of 10 December 1982, Series A no. 56, p. 18, §
53).
2. Reasonableness of the length of the proceedings
The
Government contested the applicant's complaint, stating that there
were no significant periods of inactivity attributable to the State.
According to the Government, the delays in the proceedings were
mainly attributable to private persons – the expert and the
respondent, as well as to the applicant's challenge of the judgment.
The
applicant disagreed.
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).
The
Court notes that the length of the proceedings falling within the
Court's competence exceeded five years, from which four years and two
months the case was pending before the first instance court.
The
Court considers that the case concerned a property issue and was not
particularly complex, either factually or legally, nor does it appear
that the applicant's conduct has substantially contributed to the
length of the proceedings. The Court is not persuaded by the
Government's argument that the applicant should be reproached for
having appealed against the unfavourable judgment of 8 November 2001,
the more so, after the first instance court's judgment, the
proceedings before the court of appeal and the Supreme Court lasted
eleven months in total.
The
Court further notes that the proceedings before the first instance
court were suspended for one year due to a forensic accounting
examination in the case. Moreover, significant delays were caused by
nineteen repetitive adjournments of the case due to the expert's and
the respondent's failure to appear before the court. However, the
domestic court failed to take any steps to assure, in particular, the
expert's presence in order to proceed with the case.
Finally,
the Court notes that the civil dispute at issue concerned the
applicant's share in the agricultural collective enterprise, which
was of significant value for him.
Having
examined all the material submitted to it and bearing in mind that
the proceedings had started some two years and ten months before the
entry into force of the Convention in respect of Ukraine, 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVNETION
The
applicant further complained under Article 6 § 1 of the
Convention about an unfair hearing in his case and about the
partiality of the courts.
However,
in the light of all the materials in its possession, the Court finds
that they 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 being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 of the Convention.
IV. 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 55,000 euros (EUR) in respect of pecuniary and EUR
17,000 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. On
the other hand, it awards the applicant EUR 400 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 900 for the costs and expenses incurred
before the domestic courts and before the Court.
The
Government contested the claim.
Regard
being had to the information in its possession and the above
criteria, the Court rejects the claim for costs and expenses.
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 complaint concerning 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;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 400 (four
hundred euros) in respect of non-pecuniary damage to be converted
into the national currency of the respondent State 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 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 21 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
