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Cite as: [2011] ECHR 1390

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FIFTH SECTION

CASE OF OMELYANENKO v. UKRAINE

(Application no. 36758/08)

JUDGMENT

STRASBOURG

22 September 2011

This judgment is final but it may be subject to editorial revision.

In the case of Omelyanenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Boštjan M. Zupančič, President,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 30 August 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 36758/08) 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 Volodymyr Andriyovych Omelyanenko (“the applicant”), on 17 July 2008.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice.

On 25 August 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1951 and lives in Kharkiv.

On 7 February 1994 he lodged a claim with the Kyivskyy District Court of Kharkiv (“the District Court”) against two companies and a local institute, by which he sought to be provided with a flat.

On 31 March 1995 the above court partly allowed the claim and ordered the institute to provide the applicant with a flat. On 16 May 1995 the Kharkiv Regional Court upheld that judgment.

On 20 September 1995, 26 February 1996, 17 November 1999 and 10 December 2001 the District Court delivered additional judgments in the case. On 17 October 1995, 19 July 1996, 29 September 2000 and 13 March 2002, respectively, the Kharkiv Regional Court and the Kharkiv Regional Court of Appeal quashed those judgments and remitted the case for fresh examination.

On 11 June 2002 the applicant lodged an appeal in cassation against the ruling of 13 March 2002. On 10 March 2003 the District Court requested the applicant to lodge it in accordance with the procedural requirements. Following that, on 3 March 2004 the Supreme Court upheld the ruling of 13 March 2002.

On 2 December 2004 the District Court delivered the additional judgment in the case. On 9 February 2005 and 18 January 2008, respectively, the Kharkiv Regional Court of Appeal and the Lugansk Regional Court of Appeal (the latter court acting as a court of cassation) upheld it.

In the course of the proceedings fifteen hearings were adjourned due to the respondents’ failure to appear, due to the illness or absence of a judge or for unspecified reasons. One forensic examination was ordered (between 15 October 1997 and 9 August 1999).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained under Articles 6 § 1 and 13 of the Convention about the unreasonable length of the proceedings in his case. The complaint falls to be examined solely under Article 6 § 1, which provides, insofar as relevant, 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 only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. 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. The period in question ended on 18 January 2008. The proceedings thus lasted ten years and four months before three judicial instances.

A. Admissibility

The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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).

16. The Court considers that the complexity of the case and the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraph 8 above), cannot explain their overall length. On the other hand, the Court finds that the protraction of the proceedings was mainly caused by several remittals of the case for fresh examination (see paragraph 7 above), by the lengthy consideration of the case by the court of cassation (see paragraph 9 above) and by the repeated adjournments of the court hearings (see paragraph 10 above). It concludes, therefore, that the main responsibility for the lengthy duration of the proceedings rests with the 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; Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006).

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 proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.

II. REMAINING COMPLAINTS

The applicant also complained under Articles 6 § 1 and 13 of the Convention about the unfavourable outcome of the proceedings.

Having carefully examined the applicant’s submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) 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 30,000 Ukrainian hryvnias ¹ (UAH) in respect of pecuniary damage and asked the Court to award him non-pecuniary damage in accordance with its practice.

The Government contested the claim for pecuniary damage and, in respect of non-pecuniary damage, left the matter to the Court’s discretion.

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 3,200 in respect of non-pecuniary damage.

B. Costs and expenses

The applicant also claimed UAH 830.21 ² for the costs and expenses incurred before the domestic courts and UAH 255^³ for those incurred before the Court (correspondence and translation expenses).

The Government contested the claim for costs and expenses incurred before the domestic courts. They further observed that, in respect of the costs and expenses incurred before the Court, the applicant had provided receipts to the amount of UAH 222.24 ⁴.

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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 20 for the proceedings before the Court.

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 EUR 3,200 (three thousand two hundred euros) in respect of non-pecuniary damage and EUR 20 (twenty euros) in respect of costs and expenses, 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 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 22 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič
Deputy Registrar President

1. About 2,685 euros (EUR)

2. About 74 EUR

3. About 23 EUR

4. About 20 EUR