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Cite as: [2011] ECHR 90

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FIFTH SECTION

CASE OF ANDRENKO v. UKRAINE

(Application no. 50138/07)

JUDGMENT

STRASBOURG

20 January 2011

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

In the case of Andrenko v. Ukraine,

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

Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 14 December 2010,

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

PROCEDURE

The case originated in an application (no. 50138/07) 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, Ms Nina Alekseyevna Andrenko (“the applicant”), on 2 November 2007.

The applicant was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.

On 11 January 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 1957 and lives in Kharkiv.

On 20 April 1999 the applicant lodged a claim with the Kominternivskyy District Court of Kharkiv (“the Kominternivskyy Court”) against her brother. She sought the annulment of her father’s will.

On 26 November 2001 the Kominternivskyy Court left the claim without examination because the parties had failed to attend.

On 14 January 2002 the applicant lodged the same claim with the Kominternisvkyy Court. On the same date the court allowed the applicant’s request for securing the claim and seized the respondent’s property.

On 24 November 2008 the Kominternivskyy Court rejected the applicant’s claims as unsubstantiated.

On 12 December 2008 the applicant appealed against the judgment. On 12 January 2009 the Khrakiv Regional Court of Appeal left the appeal without examination as lodged out of time.

On 12 August 2009 the Supreme Court allowed the applicant’s appeal in cassation, which she had to resubmit on one occasion in order to comply with procedural requirements, quashed the decision of 12 January 2009 and sent the case for examination to the Court of Appeal.

On 14 October 2009 the Kharkiv Regional Court of Appeal examined the applicant’s appeal on the merits, after she had rectified certain shortcomings in her appeal. The court of appeal quashed the judgment of 24 November 2008, finding that the case had not been duly examined by the first-instance court and remitted the case for fresh examination.

The case is currently pending before the first-instance court.

In the course of the proceedings before the first-instance court, on 1 June 2004 and 15 March 2006 the applicant supplemented her claims. There were three expert examinations ordered on the applicant’s request and the proceedings were accordingly suspended for a total period of approximately eight months. The hearings were adjourned twenty-two times because of the applicant’s failure to appear or on her requests. On thirty-two occasions the hearings were adjourned because of the other participants’ failure to appear and of the judge’s absence or for technical reasons.

THE LAW

I. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS

The applicant complained that the length of the proceedings was 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 ...”

A. Admissibility

The Court notes that this 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 applicant complained that the length of the proceedings was excessive.

The Government submitted that the subject-matter of the domestic proceedings was of itself complex, involved expert examinations and had been also complicated by the applicant’s adjustment of her claims. They further maintained that the applicant had contributed to the length of the proceedings by failing to appear at the hearings, by lodging requests for their adjournment and by lodging appeals with the higher courts. They argued that there had been no substantial delays which could be attributed to the State.

The Court notes that the period to be taken into consideration began on 14 January 2002 and has not yet ended. It has thus lasted eight years and nine months.

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).

Turning to the facts of the case, the Court notes that the domestic proceedings concerned the question of validity of a will. Although the applicant amended her claims on two occasions and the courts had to seek experts’ opinions to decide on the case, it cannot be considered to be of a particular complexity.

The Court further observes that it took the first-instance court six years and ten months to deliver a judgment in the applicant’s case (see paragraphs 7 and 8 above). The judgment was subsequently quashed by the court of appeal because of lack of analysis on the part of the first-instance court which has not yet completed the consideration of the case (see paragraphs 11 and 12 above). Although the applicant somewhat contributed to the length of the proceedings (see paragraph 13), her behaviour alone cannot justify overall length of eight years and nine months so far. The Court therefore concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.

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, § 49-53, 6 September 2005; Vashchenko v. Ukraine, no. 26864/03, § 50, 26 June 2008, Pysatyuk v.Ukraine, no. 21979/04, §§ 24, 30-34, 16 April 2009; and Popilin v. Ukraine, no. 12470/04, §§ 24-31, 16 April 2009).

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 COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of unfairness and about the outcome of the proceedings.

The Court notes that the proceedings complained of are pending before the domestic courts. It follows these complaints are premature and must be rejected under Article 35 §§ 1 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 2,000 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 on account of the excessive length of the civil proceedings in her case. Ruling on an equitable basis, it awards her EUR 1,600 under that head.

B. Costs and expenses

The applicant also claimed EUR 372 for costs and expenses she incurred in the domestic proceedings and before the Court.

The Government submitted that only a part of the applicant’s claims were supported by copies of relevant documents. They also contended that another part of the claims was not related to the examination of the case by the Court.

The Court notes that the applicant provided relevant supporting documents for the amount of EUR 20 she had paid for corresponding with the Court. It therefore awards the applicant this amount for costs and expenses.

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

1. Declares the complaint under Article 6 § 1 of the Convention concerning the 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 1,600 (one thousand and 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 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 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Rait Maruste
Deputy Registrar President