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BRATCHENKO v. UKRAINE - 27234/04 [2010] ECHR 1807 (18 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1807.html
Cite as:
[2010] ECHR 1807
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FIFTH
SECTION
CASE OF
BRATCHENKO v. UKRAINE
(Application
no. 27234/04)
JUDGMENT
STRASBOURG
18
November 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Bratchenko v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Karel
Jungwiert,
Ganna Yudkivska, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 19 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27234/04) 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 Tamara Sergeyevna
Bratchenko (“the applicant”), on 2 December 2002.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
On
24 March 2009 the Court
declared the application partly inadmissible and decided to
communicate the complaint under Article 6 § 1 of the Convention
about the length of the proceedings against a local police office and
the proceedings against Mr B. and Mr S. to the Government. In
accordance with Protocol No. 14, the application was allocated to a
Committee. It was also decided that the Committee would rule on the
admissibility and merits of the application at the same time (Article
29 § 1 of the Convention).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. First set of proceedings
On
5 December 2001 the applicant instituted proceedings in the Leninsky
Court of the Crimea (“the Leninsky Court”) against the
Leninsky District Police Office (“the police office”) and
the Leninsky Prosecutor's Office. She challenged their actions in
investigating the criminal case against Mr R., who had inflicted
light bodily harm on the applicant in August 1999. The applicant also
claimed compensation for the damage caused to her.
Between
16 September 2002 and 20 November 2002 no hearings were held since
the judge sitting in the case was on holiday.
On
20 January 2003 the Leninsky Court left the applicant's claim without
consideration since she failed to appear. On 19 May 2003 the Leninsky
Court reviewed its decision and the proceedings were resumed.
On
6 April 2004 the Leninsky Court partly allowed the claim and awarded
the applicant UAH 15,000 (about EUR 2,278) in compensation for
non-pecuniary damage, to be paid by the police office.
The
applicant and the police office lodged their appeals against the
judgment.
On
10 June and 23 June 2004 the Leninsky Court left the applicant's and
the police office's appeals, respectively, without consideration due
to their procedural shortcomings.
On
28 February 2005 the Court of Appeal of the Autonomous Republic of
Crimea (“the Court of Appeal”) dismissed the applicant's
appeal against the ruling of 10 June 2004. On 25 April 2005 the
applicant lodged an appeal in cassation against the ruling of 28
February 2005 with the Supreme Court.
There
was no procedural activity from 25 April 2005 to 19 May 2007.
On
19 May 2007 the Supreme Court transferred the case to the
Zaporizhzhya Regional Court of Appeal for consideration. On
27 November 2007 the latter, acting in its cassation
jurisdiction, quashed the ruling of 28 February 2005 and transmitted
the case to the Court of Appeal for consideration of the applicant's
appeal against the ruling of 10 June 2004.
On
8 April 2008 the Court of Appeal quashed the ruling of 10 June 2004.
On 20 May 2008 the Court of Appeal quashed the judgment of
6 April 2004 and terminated the proceedings since the first
instance court had no jurisdiction to consider the case.
The
applicant stated in her submissions that she had challenged the
decision of 20 May 2008 before the Higher Administrative Court and
the proceedings are still pending. However, she provided no documents
in support of that statement. According to the records provided by
the Government, the applicant lodged no appeal against the decision
of 20 May 2008.
B. Second set of proceedings
In
the period from September till December 1989 the applicant's
apartment was used by the acquaintances of her son, Mr B. and Mr S,
who moved in without her permission and, according to the applicant's
submissions, damaged it.
On
11 January 1990 the applicant instituted proceedings in the Leninsky
Court against Mr B. and Mr S. seeking compensation for pecuniary
and non-pecuniary damage. On an unspecified date the case was
transferred to the Kerch Court. On 29 October 1991 the latter left
the applicant's claim without consideration. On 6 May 1992 the Court
of Appeal of the Crimean Region quashed that ruling.
On
18 August 1995 the Kerch Court left the applicant's claim without
consideration and discontinued the proceedings.
On
3 April 1998 the Presidium of the High Court of the Autonomous
Republic of Crimea allowed the protest (extraordinary appeal) of its
Deputy President against the ruling of 18 August 1995, quashed it and
remitted the case to the Kerch Court for fresh consideration.
On
5 November 1998 the Kerch Court partly allowed the applicant's claims
and awarded her 30,600 Ukrainian hryvnias (UAH), to be paid by Mr B.
and UAH 7,400, to be paid by Mr S. The judgment was not appealed
against and became final. It remained unenforced.
In
January 2002 Mr B. asked the Kerch Court to renew a deadline to
appeal against the judgment of 5 November 1998. On 6 March 2002 the
Kerch Court granted his request. On 10 April 2002 the Court of Appeal
quashed the judgment of 5 November 1998 and remitted the
case to the Kerch Court. In particular, the Court of Appeal found
that Mr B. had not been duly informed about the hearings in the case
and that the judgment of 5 November 1998 had been adopted in his
absence.
On
30 September 2002 the Supreme Court dismissed the applicant's appeal
in cassation against the ruling of 10 April 2002.
On
12 December 2002 the Kerch Court partly allowed the applicant's
claims and awarded her UAH 38,080 (about 6,840 euros, EUR), to be
paid jointly by Mr B. and Mr S.
On
12 February 2003 the Kerch Court dismissed Mr B.'s appeal due to its
procedural shortcomings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE FIRST SET OF PROCEEDINGS
The
applicant complained that the length of the first set of 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...”
The
Government contested that argument.
The
period to be taken into consideration began on 5 December 2001 and
ended on 20 May 2008. It thus lasted more than six years and five
months for three levels of jurisdiction.
A. Admissibility
The
Court notes that the 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
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 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 considers
that in the instant case the length of the first set of proceedings
was excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON
ACCOUNT OF THE LENGTH OF THE SECOND SET OF PROCEEDINGS
The
applicant further complained about the length of the second set of
proceedings.
The
Court notes that the proceedings pending prior to 11 September 1997,
when the recognition by Ukraine of the right of individual petition
took effect, should not be taken into consideration for the purposes
of the calculation of the overall length of the proceedings. 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.
On that date, the proceedings had lasted over five and a half years
before being discontinued in August 1995. Subsequent to 11 September
1997, there were no proceedings pending until 3 April 1998, when the
proceedings were resumed after the quashing of the ruling of 18
August 1993.
The
Court further notes that the judgment of 5 November 1998 was not
appealed against and became final, that is, the proceedings were
pending for a little over seven months. There were no proceedings
between 5 November 1998 and 6 March 2002 when that judgment was
quashed.
The
proceedings in the applicant's case ended on 12 February 2003, that
is, approximately a further 11 months.
The overall duration of the proceedings falling within the Court's
competence, was a little more than 18 months. During this period the
case was considered by the domestic courts at three levels of
jurisdiction.
The
Court further notes that there were no significant periods of
inactivity attributable to the State during the time when case had
been pending before the courts.
In
view of the above, the Court concludes that the length of the second
set of proceedings did not exceed a reasonable time within the
meaning of Article 6 § 1 of the Convention.
It
follows that this part of the application must be rejected as being
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
In her initial application the
applicant claimed EUR 50,000 in respect of just satisfaction. Within
the time-limit allotted by the Court for submission of her
observations and just satisfaction claims, the applicant claimed
award in respect of just satisfaction. However, she did not specify
the amount.
The
Government found the initial claims exorbitant and unsubstantiated.
They further submitted that there were no grounds to award any sum
since the applicant failed to provide her claims in respect of just
satisfaction together with her observations.
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, it awards the applicant
EUR 600 in respect of non-pecuniary damage.
B. Costs and expenses
In
the present case the applicant failed to submit any separate claim;
the Court therefore makes no award.
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 applicant's complaint under Article
6 § 1 about the length of the first set of proceedings
admissible and her complaint about the length of the second set of
proceedings inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the first
set of proceedings;
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 600 (six
hundred euros), plus any tax that may be chargeable, 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;
(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 18 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
