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ONOPKO v. UKRAINE - 39878/05 [2012] ECHR 190 (2 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/190.html
Cite as:
[2012] ECHR 190
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FIFTH
SECTION
CASE OF
ONOPKO v. UKRAINE
(Application
no. 39878/05)
JUDGMENT
STRASBOURG
2 February
2012
This
judgment is final. It may be subject to editorial revision.
In
the case of Onopko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Elisabet
Fura,
Ganna Yudkivska, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an
application (no. 39878/05) 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 Sergiyivna Onopko (“the
applicant”), on 8 November 2005.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
On
29 April 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
applicant was born in 1962 and lives in Poltava.
In
August 1991 the applicant with her minor son moved to Poltava from
their town found to be contaminated as a result of the Chornobyl
nuclear disaster. They were housed in a State hostel.
In
June 1992 the applicant was placed on a waiting list for obtaining
free housing as a victim of the Chornobyl disaster.
A. The first set of proceedings
In July 2000 the applicant
instituted proceedings at the Zhovtnevyy District Court of
Poltava (“the Zhovtnevyy Court”) against
the local authorities seeking allocation of a free flat.
On 28 February 2001 the
Zhovtnevyy Court ruled that the
applicant should be provided with free housing under the conditions
prescribed by law and according to her place in the waiting list.
On 29 March 2001 the Poltava
Regional Court (since June 2001 – the Poltava Regional Court of
Appeal, hereinafter – “the Poltava Regional Court”)
upheld this judgment.
On 23 May 2002 the Supreme Court
quashed the above ruling for some procedural shortcomings and
remitted the case for fresh examination to the appellate court.
On 27 June 2002 the Poltava
Regional Court rejected the applicant’s appeal again.
Between July 2002 and April 2003
the courts at two levels considered the admissibility of the appeal
in cassation lodged by the applicant. In April 2003 she submitted a
rectified appeal in cassation with the Supreme Court.
On 11 December 2003 the Supreme
Court started the proceedings.
On 12 May 2005 it rejected the
applicant’s appeal in cassation as unsubstantiated.
B. The second set of proceedings
On 26 February 2002 the
applicant instituted administrative proceedings in the Zhovtnevyy
Court against the Poltava City Council seeking
free housing as a matter of priority.
From 8 July
2004 to 29 June 2005 these proceedings were stayed at the applicant’s
request, pending the outcome of the first set of the proceedings.
On 8 February 2006 the
Zhovtnevyy Court rejected the claim as
being without basis. The applicant appealed.
On 15 May 2006 the Poltava
Regional Court allowed her appeal in part. It quashed the impugned
judgment and remitted the case for fresh examination to the
first-instance court, having held however that it fell to be examined
under the civil rather than the administrative procedure.
On 28 November 2007 the Higher
Administrative Court quashed the aforementioned ruling and remitted
the case to the appellate court with a conclusion that it was civil
and not administrative.
On 5 August 2009 the Kharkiv
Regional Court of Appeal (“the Kharkiv Regional Court”),
to which the case was referred on an unspecified date, found against
the applicant.
On
2 February 2011 the Higher Administrative Court upheld the lower
courts’ decisions.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE SECOND SET OF PROCEEDINGS
The
applicant complained that the length of the
second set of proceedings had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention, which reads as follows in the relevant part:
“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 (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
applicant maintained that it had taken the domestic courts an
unjustifiably long period of time to adjudicate her claim which did
not raise any complex issues and was of paramount importance for the
well-being of her family.
The
Government considered the length of the proceedings to be reasonable.
They contended that, if there had been any delays, they were
attributable either to the applicant’s procedural actions or to
the parties’ behaviour in general. The Government referred, in
particular, to the stay of the proceedings for about a year at the
applicant’s request.
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).
The
Court observes that the period to be taken into consideration in the
present case began on 26 February 2002 and
ended on 2 February 2011, thus lasting around nine years for
three levels of jurisdiction. The Court does not lose sight of the
fact that, as pointed out by the Government, during about a year of
this period the proceedings were stayed at the applicant’s
request.
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. Having regard to its
case-law on the subject, the Court considers that the length of the
proceedings, even if the mentioned one-year stay period is deducted
from it, was excessive.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER COMPLAINTS
The
applicant also complained under Article 6 § 1 of the Convention
about the alleged unfairness of both sets of proceedings and the
length of their first set. She further complained under Article 1 of
Protocol No. 1 about the failure of the State to provide her family
with free housing.
In
the light of the materials in its possession, the Court finds that
the applicant’s complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It
follows that this part of the application must be declared
inadmissible as 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 400,000 euros (EUR) in respect
of non pecuniary damage and EUR 30,000 in respect of pecuniary
damage.
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, the Court considers that the applicant
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards her EUR 2,400 under that
head.
B. Costs and expenses
The
applicant also claimed EUR 7 for the costs and
expenses incurred before the Court.
The
Government left the matter to the Court’s discretion.
Regard
being had to the documents in its possession and to its
case law, the Court considers that the sum claimed should
be awarded in full.
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 concerning the excessive
length of the second set of proceedings admissible and the remainder
of the application inadmissible;
2. Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the second
set of proceedings;
3. Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, to be
converted into national currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR
2,400 (two thousand four hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
7 (seven euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark
Villiger Deputy Registrar President
