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Cite as: [2011] ECHR 782

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FIFTH SECTION

CASE OF FEDOROVA v. UKRAINE

(Application no. 1853/08)

JUDGMENT

STRASBOURG

12 May 2011

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

In the case of Fedorova 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 12 April 2011,

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

PROCEDURE

The case originated in an application (no. 1853/08) 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, Ms Svetlana Mikhaylovna Fedorova (“the applicant”), on 22 December 2007.

The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.

On 5 January 2009 the Court 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 1945 and lives in Sevastopol.

In February 1996 the applicant, who was later joined by a certain B., instituted proceedings in the Gagarinskyy District Court of Sevastopol (“the District Court”) against six individuals seeking annulment of a sale contract and a deed of gift in respect of a flat.

On 21 October 1999 the District Court refused to examine the applicant’s claims owing to her repeated failure to attend the hearings. On 12 January 2001 the Sevastopol Court of Appeal (“the Court of Appeal”), upon the Sevastopol Prosecutor’s “protest” of December 2000, quashed this decision and remitted the case to the first instance court which, on 26 January 2004, rejected the applicant’s claims as unsubstantiated. In its judgment, the court enumerated the main arguments of the parties, analysed the evidence obtained, made references to the substantial and procedural laws and gave reasons for its conclusion.

On 25 August 2004 the Court of Appeal upheld that judgment, having in particular analysed the evidence obtained by the first-instance court and having rebutted two of the applicant’s statements.

On 21 September 2004 the applicant appealed in cassation. She was subsequently twice invited to rectify her appeal to meet procedural requirements. On 30 December 2004 the District Court allowed her request to extend the time-limit for lodging the appeal in cassation. On 3 August 2007 the Crimea Court of Appeal, acting as a cassation court and having agreed with the lower courts’ findings, rejected the applicant’s appeal in cassation as unsubstantiated.

According to the Government, between 11 September 1997 and 3 August 2007, two expert examinations were ordered and the applicant filed five procedural requests. She also filed three appeals that did not meet procedural requirements. Of the forty six hearings scheduled during the same period of time, ten were adjourned at the applicant’s request, nine were adjourned owing to the presiding judge’s absence, six were adjourned due to one or more of the defendants’ or witness’s failure to attend, two were adjourned due to the both parties’ failure to attend, and one was adjourned at request of one or more defendants. Overall, due to the applicant’s requests or her failure to attend, the proceedings were delayed for about one year and nine moths, excluding the period between 21 October 1999 and 12 January 2001.

THE LAW

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

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in 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.

The period to be taken into consideration began only on 11 September 1997, when the Convention entered into force with regard to Ukraine. 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 3 August 2007. It thus lasted more than nine years and ten months 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 Government maintained that the proceedings had been complex on account of the number of litigants and the need to order two expert examinations. In their view, the parties had been responsible for several delays and the applicant in particular by filing procedural requests and appeals. There had been no significant periods of inactivity attributable to the domestic courts.

The applicant disagreed.

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, e.g., Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

As regards the subject matter of the litigation, the Court finds that it cannot be considered particularly complex.

With regard to the applicant’s conduct, the Court admits that there were certain delays attributable to her (see paragraphs 8 and 9 above). However, it will not take into account the District Court’s finding of 21 October 1999 and the subsequent period as that decision was overturned by the Court of Appeal (see paragraph 6 above). Moreover, in respect of her procedural requests and appeals, the Court notes that she merely exercised her procedural rights and cannot be blamed for using the avenues available to her under the domestic law in order to protect her interests (see, Silin v. Ukraine, no. 23926/02, § 29, 13 July 2006). Thus, without the delays attributable to the applicant, the length of the proceedings would have been eight years and one month.

The Court notes that the conduct of the parties to the proceedings and the complexity of the case cannot explain the overall length of the proceedings at issue. It finds that the main delay in the proceedings took place during the examination at the first-instance court that lasted, taking into consideration the Court’s competence ratione temporis, more than six years (see paragraphs 5 and 6 above). Another substantial delay was caused by the Supreme Court that reviewed the case for more than two years and seven months, excluding a delay attributable to the applicant.

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, it 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 COMPLAINTS

The applicant further complained under Article 6 § 1 of the Convention that the domestic courts had failed to give reasons for their decisions on the merits of her claim.

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 10,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested the claim.

The Court considers that the applicant must have sustained non pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,600 under that head.

B. Costs and expenses

The applicant also claimed 18,500,000 karbovanets (185 hryvnias (UAH)) and UAH 711 (overall EUR 72)¹ for the costs and expenses incurred before the domestic courts. She accordingly submitted receipts for the court and lawyer fees and postal expenses. The applicant further claimed UAH 158 (EUR 13) for postal expenses incurred before the Court and submitted the relevant receipts.

The Government contested the claim regarding the domestic proceedings, but left the remainder of the claim to the Court’s discretion.

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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings as there is no indication that they were necessarily incurred that is in order to prevent the violation or obtain redress therefore. On the other hand, the Court considers it reasonable to award the sum of EUR 13 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 in respect of the length of the proceedings;

Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 1,600 (one thousand six hundred euros) in respect of non pecuniary damage and EUR 13 (thirteen euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable on 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 12 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič
Deputy Registrar President

1. 1 UAH = 0.08 EUR