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Cite as: [2011] ECHR 1393

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FIFTH SECTION

CASE OF VOLCHKOVA v. UKRAINE

(Application no. 17059/07)

JUDGMENT

STRASBOURG

22 September 2011

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

In the case of Volchkova 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. 17059/07) 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 Olga Leonidivna Volchkova (“the applicant”), on 4 April 2007.

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 1952 and lives in Poltava.

On 2 June 2000 she lodged a claim with the Poltava Court against the V. company in a corporate dispute between them.

On 30 January 2001 the court requested the applicant to rectify her claim in accordance with the procedural formalities by 10 February 2001.

On 29 May 2006 the same court rejected the applicant’s claim as lodged out of the period of limitation.

On 5 October 2006 and 8 August 2007, respectively, the Poltava Regional Court of Appeal and the Higher Commercial Court upheld the above judgment.

According to the Government, in the course of the proceedings nine hearings were adjourned at the applicant’s requests or due to her or both parties’ failure to appear. The applicant disagreed that three hearings had been adjourned at her request or due to her failure to appear. The above delays on the applicant’s part protracted the proceedings to approximately eight and a half months. Some twenty one hearings were adjourned mainly due to the absence of the respondent, its requests for the adjournments, the need to collect additional documents, sickness of a judge, transfer of the case to another judge, moving of the court to another premise or for unspecified reasons.

THE LAW

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

The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the proceedings had been incompatible with the “reasonable time” requirement. The Court considers that the complaint should be examined solely under Article 6 § 1, which reads, in so far 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 stating that the case had been complex and that the applicant had contributed to the overall length of the proceedings.

The period to be taken into consideration began on 2 June 2000 and ended on 8 August 2007. It thus lasted seven years two months and six days for three levels of jurisdiction.

A. Admissibility

The Court notes that this 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).

15. Turning to the particular circumstances of the case, 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 paragraphs 6 and 9 above), cannot explain their overall length. On the other hand, it finds that the protraction of the proceedings was mainly caused by the lengthy examination of the case by the first-instance court (see paragraphs 5 and 7 above) and by twenty one adjournments of the hearings (see paragraph 9 above). The Court 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

18. The applicant also complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about and on account of 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 for 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, costs and expenses

The applicant claimed a global sum of 150,000 ¹ Ukrainian hryvnias (UAH) for pecuniary and non-pecuniary damage as well as for costs and expenses incurred before the domestic courts and the Court. She provided copies of postal receipts for correspondence with the Court to the amount of UAH 228.95^².

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, it considers that the applicant must have sustained non pecuniary damage. Ruling on an equitable basis, the Court awards her EUR 600 under that head.

25. Furthermore, regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the applicant EUR 20 for the proceedings before it.

B. 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 600 (six hundred euros) in respect of non-pecuniary damage and EUR 20 (twenty euros) for 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 13,126 euros (EUR)

2. About EUR 20