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Cite as: [2011] ECHR 1909

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FIFTH SECTION

CASE OF SVERCHKOV AND SVERCHKOVA v. UKRAINE

(Application no. 55865/07)

JUDGMENT

STRASBOURG

10 November 2011

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

In the case of Sverchkov and Sverchkova 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 11 October 2011,

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

PROCEDURE

The case originated in an application (no. 55865/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mrs Gennadiy Fyodorovich Sverchkov and Mrs Alla Aleksandrovna Sverchkova (“the applicants”), on 27 November 2007.

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

On 27 September 2010 the President of the Fifth Section decided to give notice of the application to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicants were born, respectively, in 1949 and 1946 and live in Zaporizhzhya.

A. The first set of the proceedings

On 18 September 2000 Mrs F. lodged a claim with the Leninskyy District Court of Zaporizhzhya (“the Leninskyy Court”) against the applicants, requesting it to determine how the parties should use their adjacent plot of land.

On 11 January 2002 the court delivered a judgment. On 8 April 2002 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) upheld it. On 16 October 2002 the Supreme Court quashed both decisions and remitted the case for fresh consideration.

On 11 July 2005 the Leninskyy Court delivered a judgment. On 8 December 2005 the Court of Appeal amended it. On 13 December 2006 the Supreme Court quashed both decisions and remitted the case for fresh consideration.

On 19 October 2007 the Leninskyy Court rejected the claim of Mrs F. as unsubstantiated. On 20 May and 26 November 2008, respectively, the Court of Appeal and the Supreme Court upheld that judgment.

According to the Government, in the course of the proceedings eight hearings were adjourned due to the applicants’ or all parties’ absence or following the applicants’ requests. The applicants disagreed stating that they had attended all hearings. Nineteen hearings were adjourned mainly due to the absence of other parties, absence of a judge or an expert or because the courts needed to collect additional documents. Four forensic examinations were ordered and lasted for about one year.

B. The second set of the proceedings

On 10 October 2000 the applicants lodged a claim with the Leninskyy Court against Mrs F., seeking the elimination of obstacles in using the impugned plot of land. On an unspecified date Mr and Mrs E. joined the proceedings as co-respondents.

Between 5 October 2001 and 16 January 2006, 14 November 2006 and 31 January 2007 and between 22 February 2007 and 5 June 2008 the proceedings were suspended pending the outcome of the first set of the proceedings. Between 1 June and 14 October 2006 the proceedings were suspended with a view to allowing the successors of Mr and Mrs E., who had died in January and April 2006, to take part in the case.

On 25 June 2009, following a friendly settlement reached by the parties, the Leninskyy Court discontinued the proceedings. The applicants did not appeal against that decision.

According to the Government, in the course of the proceedings three hearings were adjourned due the applicants’ or all parties’ absence or following the applicants’ request. Two hearings were adjourned due to the respondent’s absence. One forensic examination was ordered and lasted for about four months.

THE LAW

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

The applicants complained under Articles 6 § 1 and 13 of the Convention about the excessive length of the proceedings in their cases. The complaint falls to be examined solely under Article 6 § 1 of the Convention, 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 examination of the cases had been complicated by the number of parties in the proceedings and that the applicants had contributed to the length.

The periods to be taken into consideration are as follows. The proceedings in the first set, which began on 18 September 2000 and ended on 26 November 2008, lasted for about eight years and two months in three judicial instances. The proceedings in the second set, which began on 10 October 2000 and ended on 25 June 2009, lasted for about eight years and eight months in one judicial instance.

A. Admissibility

The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They 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 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).

19. Turning to the circumstances of the cases, the Court considers that neither their complexity nor the conduct of the applicants, who somewhat contributed to the overall length (see paragraphs 9 and 13 above) can explain their overall duration. On the other hand, in respect of the first set of the proceedings the Court notes two remittals of the case for fresh examination and the period of the examination of the case by the first instance court during the first re-consideration of the case (see paragraphs 6 and 7 above) as well as nineteen adjournments of the hearings (see paragraph 9 above). In respect of the second set, the Court notes that the major delays were caused by three suspensions of the proceedings pending the outcome of the first set of the proceedings (see paragraph 11 above), which in turn lasted for eight years and two months. It considers that the responsibility for these delays rested with the domestic courts (see, mutatis mutandis, Fedina v. Ukraine, no. 17185/02, § 80, 2 September 2010; and Doroshenko v. Ukraine, no. 1328/04, § 41, 26 May 2011).

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 both sets of 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

22. The applicants also complained under Articles 6 § 1 and 13 of the Convention about the unfavourable outcome of the proceedings and raised complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 on account of such outcome.

Having carefully examined the applicants’ 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 applicants claimed 33,000 Ukrainian hryvnias ¹ (UAH) in respect of non-pecuniary damage.

The Government contested the claim.

The Court considers that the applicants must have sustained non pecuniary damage on account of the violation found and considers it reasonable to award the full sum claimed.

B. Costs and expenses

The applicants also claimed UAH 7,049.70 for the costs and expenses incurred before the domestic courts and UAH 615.76 ² for the correspondence and photocopying expenses incurred in the proceedings before the Court, having supporting these claims by documents.

The Government contested the claims for the costs and expenses before the domestic courts as well as the claim for photocopying expenses before the Court. In respect of the correspondence expenses before the Court, they left the matter to the Court’s discretion.

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 full sum claimed for the correspondence and photocopying expenses before it.

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 complaints concerning the excessive length of the first and the second sets of proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the first and the second sets of proceedings;

Holds

(a) that the respondent State is to pay the applicants, within three months, EUR 2,895 (two thousand eight hundred ninety-five euros) in respect of non-pecuniary damage and EUR 54 (fifty-four euros) in respect of costs and expenses, to be converted into the Ukrainian hryvnia at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič, Deputy Registrar President

1. About 2,895 euros (EUR).

2. About EUR 54.