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SHEPELEVA v. UKRAINE - 14403/04 [2009] ECHR 1564 (15 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1564.html
Cite as:
[2009] ECHR 1564
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FIFTH
SECTION
CASE OF SHEPELEVA v. UKRAINE
(Application
no. 14403/04)
JUDGMENT
STRASBOURG
15
October 2009
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 Shepeleva v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 14403/04) 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, Mrs Yelena Valentinovna
Shepeleva (“the applicant”), on 20 March 2004.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
14 January 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
The
applicant was born in 1968 and lives in the city of Kharkiv, Ukraine.
5. In 1996 her apartment was sold to Mrs T. In
October 1998 Mr P., the applicant's ex-husband, acting on behalf of
Mrs T., sold this apartment to Mr L. In March 2003 Mr L. sold back
the apartment to Mr P. and his wife, Mrs P.N. The applicant stated
that her signature on the initial sales contract with Mrs T. had been
falsified.
A. First set of civil proceedings
On 1 February 1999 the applicant
instituted proceedings in the Dzerzhynsky District Court of Kharkiv
(“the Dzerzhynsky Court”) against Mr P. and Mrs T. for a
declaration that the sale of the apartment to Mrs T. and all further
sales were null and void.
On 1 February 1999 the
Dzerzhynsky Court attached the disputed apartment, having banned in
particular, its disposal.
The first hearing was scheduled
for 30 October 2000.
Between 30 October 2000 and 15
October 2001 the first-instance court scheduled four hearings. Two
were adjourned since the parties failed to appear and the other two
because the judge was involved in other proceedings.
On 15 October 2001 the
Dzerzhynsky Court declined to consider the applicant's claim because
the parties failed to appear.
The applicant lodged an appeal
against that decision.
On 18 July 2002 the Kharkiv
Regional Court of Appeal (“the Court of Appeal”) remitted
the case for examination on the merits to the first -instance court.
According to the applicant, on
18 December 2001 the Dzerzhynsky Court lifted the sales ban imposed
under the ruling of 1 February 1999.
In the period from 18 July 2002
till 7 April 2005 the Dzerzhynsky Court scheduled nineteen hearings.
Five were adjourned because the judge was involved in other
proceedings and because he was ill. A further six were adjourned
owing to the absence of one or more of the parties.
On 7 April 2005 the Dzerzhynsky
Court granted the applicant's claim.
On 18 January 2006 the Court of
Appeal quashed that decision and remitted the case for fresh
consideration.
The case-file was returned to
the Dzerzhynsky Court in January 2006.
On 26 July 2006 the case was
transferred to another judge.
On 6 February 2007 hearings were
suspended because of the death of Mr P. On 21 March 2007 the Kharkiv
Regional Court of Appeal dismissed the applicant's appeal against the
decision of 6 February 2007. The proceedings resumed in August 2007.
On 14 December 2007 the
applicant appealed against the ruling of 18 December 2001. On 21 May
2008 the Kharkiv Regional Court of Appeal left her appeal without
consideration. On 9 July 2008 the Supreme Court upheld the ruling of
the court of appeal.
On 10 October 2008 the
Dzerzhynsky Court granted the applicant's claims in part. The
judgment was not appealed and became final.
Between 19 January 2006 and 18
January 2008 the Dzerzhynsky Court scheduled eleven hearings. Seven
were adjourned because the judge was on holiday or involved in other
proceedings. A further three were adjourned because the defendants
failed to appear. The Government and the applicant did not provide
the Court with information about the hearings scheduled after 18
January 2008.
B. Second set of civil proceedings
On 15 October 2001 Mr L.
instituted proceedings seeking the applicant's eviction from the
apartment in question.
On 26 October 2001 the
Dzerzhynsky Court ordered the applicant's eviction. On 1 October 2003
the Supreme Court rejected the applicant's cassation appeal. On
14 November 2003 the judgment was enforced and the applicant was
evicted from the apartment.
C. Criminal proceedings
On 15
February 2002 police instituted an investigation into falsifying
the applicant's signature. The investigation is still pending.
The applicant tried to institute
criminal proceedings against Mrs P.N. However, her efforts were to no
avail.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
The applicant
complained that the length of the first set of civil proceedings had
been incompatible with the “reasonable-time” requirement
laid down in Article 6 § 1 of the Convention. She further
complained under Article 13 of the lack of an effective remedy for
the length-of-proceedings complaint. The provisions at issue read as
follows:
Article 6 § 1
“In the
determination of his civil rights and obligations ... everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ...”
Article 13
“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 notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
In
their observations the Government contended that there had been no
violation of Article 6 § 1 or Article 13 of the Convention.
The
applicant disagreed.
The
Court notes that the applicant instituted the civil proceedings at
issue on 1 February 1999. The period in question ended on
10 October 2008. It thus lasted over
nine years and eight months 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).
33. The
Court notes that the complexity of the case and the applicant's
conduct alone cannot explain the overall length of the proceedings at
issue in the present case. It considers that a number of delays (in
particular, remittals of the case for fresh consideration, a lengthy
period of procedural inactivity between 1 February 1999 and 30
October 2000 and the repeated adjournment of hearings because of the
judge's involvement in other proceedings) are attributable to the
Government.
The
Court has frequently found violations of Article 6 § 1 and
Article 13 of the Convention in cases raising issues similar to the
one in the present case (see for example, Vashchenko v.
Ukraine, no. 26864/03, §§ 55 and 59, 26 June 2008).
Having
examined all the material in its possession, 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.
There
has accordingly been a violation of Article 6 § 1 and Article 13
of the Convention.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
The
applicant further complained that the length of the proceedings
complained of had infringed her right to the peaceful enjoyment of
her possessions, as guaranteed by Article 1 of Protocol No. 1.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
However,
having regard to its finding under Article 6 § 1 (see
paragraph 33 above), the Court considers that it is not
necessary to examine whether, in this case, there has also been a
violation of Article 1 of Protocol No. 1 (see Zanghì
v. Italy, 19 February 1991, § 23, Series A no. 194-C).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Article 6 § 1 about outcome and
unfairness of the first and second sets of the civil proceedings. She
further complained about the length of the second set of civil
proceedings. She also complained in reliance on Article 17 that the
judges sitting in the domestic courts were not impartial and lacked
independence. The applicant further complained under Article 8 § 1
about the unlawfulness of her eviction from the apartment. She also
alleged under the same Article that she had been deprived of contact
with her child and that her correspondence had been seized by unnamed
persons. She complained under Article 6
§ 1 and 13 of the Convention that the investigation into
falsification of her signature was ineffective. She complained that
her efforts to institute criminal proceedings against Mrs P.N. were
to no avail. Lastly, she invoked Article 1 of the Convention without
any further explanation.
The
Court has examined the remainder of the applicant's complaints and
considers that, in the light of all the material in its possession
and in so far as the matters complained of were
are within its competence, they did
do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. Accordingly, the Court rejects them as manifestly
ill-founded, pursuant to Article 35 §§ 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 405,898.80 Ukrainian hryvnias (UAH) (approximately
39,045 euros (EUR)) and 17,850 United States dollars (USD) in respect
of pecuniary damage and USD 50,000 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. On
the other hand, ruling on an equitable basis, as required by
Article 41 of the Convention, it awards the applicant EUR
2,400 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant, who was not represented before the Court, claimed UAH
13,916.80 (approximately EUR1,339)
in respect of her transport expenses, court fees, expenses for
postage, translation, photocopying, legal expenses and others. This
amount included, in particular, UAH 9,000 in legal expenses; she
failed to provide any document in support of this claim.
The
Government did not object to the applicant's claim for postal
expenses. They left the question of expenses for translation services
and photocopying to the Court's discretion and contested the
remainder of her claims under this head.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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
considers it reasonable to award the sum of EUR 80 under this head.
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 complaints concerning the length of
the first set of proceedings 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 that there is no need to examine the
complaint under Article 1 of Protocol No. 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 2,400 (two
thousand four hundred euros) in respect of non-pecuniary damage and
EUR 80 (eighty euros) in respect of costs and expenses, plus any tax
that may be chargeable to the applicant, to be converted into the
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 amounts 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 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
