AS TO THE ADMISSIBILITY OF
by Lyudmyla Stepanivna REKACHYNSKA
The European Court of Human Rights (Fifth Section), sitting on 17 February 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 29 June 2005,
Having regard to the decision of 29 April 2008 to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Lyudmyla Stepanivna Rekachynska, is a Ukrainian national who was born in 1945 and lives in Ivano-Frankivsk. She is represented before the Court by Ms S.A. Golubko, a lawyer practising in Ivano-Frankivsk. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 October 1997 the applicant lodged a civil claim with the Ivano-Frankivsk Town Court (“the Town Court”) against her two daughters seeking their eviction from the flat where they were cohabiting and an order requiring them not to impede her use of the flat.
On 8 July 2004 the Town Court, following a hearing which the applicant attended, partly allowed her civil claim and ordered her daughters not to impede her use of the flat.
The judgment became final on 9 August 2004, none of the parties to the proceedings having filed an appeal within the one-month statutory time-limit. It was served on the applicant on 16 June 2005.
B. Relevant domestic law and practice
According to Article 218 of the Civil Procedure Code, a judgment must be publicly pronounced, either fully or in its introductory and operative parts, immediately after the hearing.
Article 222 of the Code, in its relevant part, reads as follows:
“2. Copies of the judgment shall be issued to the parties, participating in the hearing, on their request, no later than within five days following the pronouncement of the judgment.
3. The judgment shall be served on the parties, who did not attend the hearing, within five days following its pronouncement [...].
4. Copies of judgments may be repeatedly issued to the parties at their expense.”
In practice, written copies of judgments are issued to the parties, who participated in the hearing, only when explicitly requested for.
The applicant complained that the length of the civil proceedings in her case had been incompatible with the “reasonable-time” requirement, laid down in Article 6 § 1 of the Convention, which provides as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government observed that the Town Court’s judgment, delivered in the applicant’s presence, had not been appealed against and had become final more than six months before the application was introduced.
The applicant disagreed.
The Court reiterates that the first day of the six-month time-limit is considered to be the day following the final decision. The date of the final decision is the day on which the judgment is rendered orally in public, or, where judgment has not been publicly pronounced, the day on which the applicant or his representative are informed of it, whichever is earlier (see Loveridge v. the United Kingdom (dec.), no. 39641/98, 23 October 2001). Where, pursuant to domestic law and practice, the applicant is entitled to be served automatically with a written copy of the judgment, time starts to run on the date the judgment is received (see Worm v. Austria, § 33, 29 August 1997, Reports 1997-V).
The Court observes that there was no obligation under domestic law requiring the Town Court’s judgment to be ex officio served on the applicant by the court. Neither was it a common practice the applicant could expect to be followed in her case (see, a contrario, Worm, cited above). The proceedings were finalised with that judgment, which was not challenged in an appeal. The applicant attended the hearing at which that judgment was delivered and thus was aware of both the substance of the judgment and of the one-month time-limit for lodging an appeal. She was thus able to foresee that the judgment would become final on 9 August 2004.
The Court thus finds that the date of the final domestic decision for the purposes of Article 35 § 1 of the Convention is 9 August 2004, whereas the application was lodged with the Court on 29 June 2005.
It follows that the application was submitted out of time. Accordingly, the Court upholds the Government’s objection and declares the application inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen