European Court of Human Rights

FIFTH SECTION

DECISION

Applications nos. 7721/07 and 8123/07
Lyubov Petrivna TYUTYUNYK against Ukraine

and Mr Valeriy Ivanovych TYUTYUNYK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 27 March 2012 as a Committee composed of:

Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,

and Stephen Phillips, Deputy Section Registrar,

Having regard to the above applications lodged on 30 January 2007,

Having regard to the comments submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Lyubov Petrivna Tyutyunyk and Mr Valeriy Ivanovych Tyutyunyk, are Ukrainian nationals who were born in 1950 and 1949 respectively. The first applicant lives in Orikhiv and the second applicant lives in Mala Tokmachka. The Ukrainian Government (“the Government”) are represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 27 May 1999 the applicants instituted civil proceedings in the Orikhiv Town Court (“the Orikhiv Court”) against a local power supply company seeking pecuniary and non-pecuniary damages in respect of their households’ inspections and the power supply cut-off.

On 27 September 1999 the Orikhiv Court stayed the examination of the case pending the outcome of another set of proceedings brought by the applicants on an unspecified date against the aforementioned company’s manager, apparently also in respect of the aforementioned events.

Following the dismissal of the applicants’ claim against the company’s manager by the courts of two levels of jurisdiction on 26 December 2000 and 8 March 2001, respectively, on 23 November 2001 the Orikhiv Court resumed its examination of their claim against the power supply company.

The proceedings were adjourned on many occasions: for a total of almost ten months because of the absence of the defendant company’s representative and for another three months during which the company studied the case file; for almost seven months because of the judge’s illness, holidays or being busy; for five and a half months given the court’s decision to obtain certain documents or summon witnesses; and for a year and two months at the applicants’ request or because of their failure to appear.

On 11 April 2006 the Orikhiv Court found against the applicants.

On 29 June and 15 September 2006 the Zaporizhzhya Regional Court of Appeal and the Supreme Court, respectively, upheld that judgment.

On 23 October 2006 the above ruling was sent to the applicants.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings initiated by them against the power supply company. They also complained under the same provision, and further relying on Articles 13 and 17 of the Convention, about the allegedly unfair outcome of those proceedings. The first applicant additionally referred to Article 1 of Protocol No. 1 in that regard.

THE LAW

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

The Government disagreed stating that the applicants themselves had contributed to the overall length of the proceedings, whereas the courts had processed their claim with due expedience.

The Court notes that the period to be taken into consideration began on 27 May 1999 and ended on 23 October 2006, having thus lasted for seven years and five months for three levels of jurisdiction.

The Court will assess whether this length can be regarded reasonable 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).

The Court does not discern any particular complexity in the proceedings. At the same time, given that they concerned the supply of electricity to the applicants’ places of residence, the Court considers that they must have been of importance for them.

The Court notes however that the major delays in the proceedings are attributable to the applicants. Thus, the applicants lodged a separate claim against the manager of the power supply company, the outcome of which had to be awaited for the proceedings against the company itself to advance. This caused a delay of two years and two months during which the applicants’ claim against the manager was adjudicated at two judicial instances. That was quite expedient under the Court’s case-law.

The Court notes in this connection that, although the applicants cannot be blamed for using the avenues available to them under domestic law in order to protect their interests, they must accept that such actions necessarily prolong the proceedings (see, for the respective principle, Malicka Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).

The Court next observes that the proceedings in question (against the company) were adjourned for a year and two months at the applicants’ request or due to their absence.

It follows that the overall duration of the proceedings, for which the applicants bore no responsibility, was four years and one month, during which their claim was examined by the courts of three levels of jurisdiction.

In the light of the above considerations, the Court does not consider that the length of the proceedings in the present case was excessive. It thus concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. The Court has also examined the applicants’ remaining complaints. Having regard to all the material in its possession, it 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 applications must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Stephen Phillips Mark Villiger
Deputy Registrar President