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LAZARUK v. UKRAINE - 6261/04 [2009] ECHR 1906 (19 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1906.html
Cite as:
[2009] ECHR 1906
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FIFTH
SECTION
CASE OF LAZARUK v. UKRAINE
(Application
no. 6261/04)
JUDGMENT
STRASBOURG
19
November 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 Lazaruk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Zdravka Kalaydjieva,
judges,
Mykhaylo Buromenskiy,
ad hoc
judge,
and Stephen
Phillips, Deputy Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 6261/04) 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, Ms Yelena Romanovna Lazaruk (“the
applicant”), on 8 January 2004.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
6 December 2007 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
The
applicant was born in 1949 and lives in the town of Mykolayiv,
Ukraine.
On
25 November 1998 the applicant instituted civil proceedings
in the Korabelnyy District Court of Mykolayiv (“the Korabelnyy
Court”) against Mr L., her neighbour, disputing his right
to use a plot of land. On 15 January 1999 Mr L. lodged
a counterclaim, alleging that he was so entitled.
On
11 January 2000 the Korabelnyy Court dismissed the
applicant’s claim and upheld Mr L.’s counterclaim.
On 16 March 2000
the Korabelnyy Court rendered an additional judgment, requiring Mr L.
to move the fence between his and the applicant’s land and
ordering the applicant to pay Mr L. litigation expenses incurred
by the latter.
On 12 April 2000
the Mykolayiv Regional Court
(“the Regional Court”
upheld the above judgments with slight amendments and they became
final. In July 2000 they were enforced in full.
On
6 October 2000 the Presidium of the Regional Court quashed
the judgments of 11 January and 16 March and the ruling of
12 April 2000, following an objection (протест)
by the Acting President of the Regional Court and remitted the case
for fresh consideration. The Presidium found that the courts had
erred in their application of the law and had not sufficiently
explored the relevant evidence.
On 14 August 2002
the Korabelnyy Court terminated the proceedings because Mr L.
had died, leaving no heirs interested in succeeding him in the
proceedings.
On
7 October 2002 the applicant appealed against this decision
and requested leave to appeal out of time, referring to the
Korabelnyy Court’s failure to inform her about the decision of
14 August 2002 in due time.
On
3 December 2002 the Korabelnyy Court rejected the
applicant’s request. The applicant appealed.
On 27 February 2003
the Regional Court quashed the decision of 3 December 2002,
having found, in particular, that the Korabelnyy Court had failed to
pronounce the decision of 14 August 2002 publicly and to
inform the applicant about it in due course.
On
3 April 2003 the Regional Court allowed the applicant’s
appeal against the decision of 14 August 2002. It remitted
the case for fresh consideration, having found that the Korabelnyy
Court had failed to take steps to identify successors to Mr L.
On
3 July 2003 the Korabelnyy Court admitted Mrs L.L.,
Mrs K.L., Mrs A.O. and Mrs K.I. to the proceedings as Mr L.’s
successors.
On
1 September 2003 the Korabelnyy Court ruled that Mrs A.O. be
questioned and some relevant court documents be served on her. Since
Mrs A.O. was residing in the town of Novorossiysk, Russia, the
court requested the Novorossiysk Court to carry out the above
actions. By the same ruling, the court suspended the domestic
proceedings. On 22 October 2003 the request was transmitted
to the Mykolayiv Regional Department of the Ministry of Justice. On
an unspecified date in October 2003 it was transmitted to the Russian
authorities.
On 22 December 2003,
following the applicant’s request, the Korabelnyy Court
attached the disputed plot of land, having prohibited, in particular,
its division and disposal, including the preparation of any relevant
documents, until the resolution of the dispute. Mr L.’s
successors appealed. On 14 January 2004 the Korabelnyy Court left
their appeal without examination. On an unspecified date in January
2004 the court renewed the time-limit for appealing against the
ruling of 22 December 2003. On 12 February 2004 the
Korabelnyy Court transmitted the case to the Regional Court. On 1
March 2003 the latter scheduled a hearing for 12 March 2003.
On
2 March 2003 the Korabelnyy Court received a reply from the
Novorossiysk Court.
On 12 March 2004
the Regional Court amended the ruling of 22 December 2003,
reducing the scope of the restrictions imposed on the users of the
plot.
On
8 April 2004 Mr L.’s successors appealed in cassation
against the rulings of 22 December 2003 and 12 March 2004. On
15 June 2006 the Supreme Court rejected their appeal in
cassation.
On
27 December 2006 the Korabelnyy Court partly allowed the
applicant’s claim, ordered Mr L.’s successors to
move the fence between the plots and dismissed the counterclaim.
On
26 March 2007 the Regional Court dismissed an appeal lodged
by Mr L.’s successors.
On
20 April 2007 Mr L.’s successors lodged an appeal in cassation
with the Supreme Court against the judgment of 27 December 2006 and
the ruling of 26 March 2007.
On
23 May 2007 the Korabelnyy District Bailiffs’ Service
initiated enforcement proceedings.
On
7 June 2007 the Korabelnyy Court rectified the judgment of
27 December 2006. On 30 January 2008 the Regional Court quashed
the ruling of 7 June 2007.
In
the period from 23 May 2007 to January 2009 Mr L.’s successors
sought suspension of the enforcement proceedings, challenged the
Bailiffs’ actions, sought interpretation of the judgment of 27
December 2006 and sought an additional judgment on numerous
occasions.
Following
the applicant’s request of 21 May 2008, on 20 June 2008 the
Korabelnyy Court ruled to reverse the execution of the judgments of
11 January 2000 and 16 March 2000 which had been enforced
in July 2000. The ruling of 20 June 2008 was upheld by the Regional
Court on 16 October 2008.
In September 2008 the Korabelnyy District Bailiffs’ Service
lodged a request with the Korabelnyy Court seeking interpretation of
the operative part of the judgment of 27 December 2006. Mr L.’s
successors lodged a request with the same court seeking an additional
judgment and interpretation of the same judgment. On 4 November 2008
the court dismissed these requests.
On
29 January 2009 the Regional Court quashed the ruling of 4 November
2009 and remitted the case to the first-instance court for fresh
consideration.
The
parties did not inform the Court about the outcome of the cassation
appeal lodged by Mr L.’s successors on 20 April 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
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 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
1. The parties’ submissions
The
Government contended that the parties to the domestic proceedings had
contributed to the length of the proceedings and that the State could
not be held liable for their behaviour. Further, they pointed out
that the case had been complex and that the judicial authorities had
acted with due diligence. They further contended that the period when
the case was pending before the Novorossiysk Court should not be
taken into account. The Government finally maintained that the length
of proceedings in the applicant’s case had not been
unreasonable.
2. Period to be taken into consideration
The
Court notes that the proceedings in question started on 25 November
1998 and are still pending. It further notes that despite the ruling
of 1 September 2003 which requested certain actions be taken by
another jurisdiction, the proceedings remained pending before the
Korabelnyy Court (see paragraphs 16 and 17 above). Therefore, the
period when the request was pending before the Novorossiysk Court
should not be excluded from the overall length of the proceedings.
Thus,
the overall duration of the proceedings, excluding the period from
12 April 2000 to 6 October 2000 when there
existed the final judgment, which was subsequently quashed, has been
more than ten years. The case was considered by the courts at three
levels of jurisdiction.
3. Reasonableness of the length of the proceedings
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).
Although
the domestic courts were required to examine a certain amount of
documentary evidence, the issues before them were not of such a
nature as to necessitate prolonged consideration of the applicant’s
case. Therefore, the Court concludes that the subject matter of the
litigation at issue cannot be considered particularly complex.
The Court notes that the
complexity of the case and the applicant’s conduct cannot
explain the overall length of the proceedings at issue in the present
case. It finds that a number of
delays (in particular, the remittals of the
case for fresh consideration, even after
a final judgment had been adopted, the
failure to inform the applicant about a decision taken in the case,
and a prolonged period of inactivity in considering Mr L.’s
successors’ cassation appeal) are attributable to the
respondent State.
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).
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 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 ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Article 6 § 1
about unfairness of the proceedings in her case. In particular, she
alleged that the judges sitting in her case were not impartial. She
further complained that in rendering the judgments of 11 January 2000
and 16 March 2000 the domestic courts had violated Article 1 of
Protocol No. 1. Lastly, she complained without invoking any
Article of the Convention or Protocols thereto about non-enforcement
of the judgment of 27 December 2006 and the ruling of 20 June
2008.
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 are within its
competence, they 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.
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 15,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
The
Government contested the applicant’s claim.
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 3,200 in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not submit any separate claim for costs and expenses.
Therefore, the Court makes no award 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 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;
3. 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 3,200
(three thousand two hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable, 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 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 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
