Quick orient — first passages from judgment

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

Mark Villiger, President, Isabelle Berro-Lefèvre, Ganna Yudkivska, judges, and Stephen Phillips , Deputy Section Registrar ,

The case originated in an application (no. 43799/05) 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, Mr Mykola Oleksiyovych Yefremov (“the applicant”), on 19 November 2005 .

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.

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THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1946 and lives in Kharkiv.

He owns a house in that city. It stands on State-owned plot of land. On 11 June 1986 the local authorities ordered the demolition of the above house and the return of the land, with a view to building a new block of flats in its place, pursuant to the urban development plan. The authorities offered the applicant a three-room apartment and fixed him certain amounts in compensation. However, the house has not been demolished so far and remains in the applicant’s possession.

1. The first set of proceedings

On 21 August 1997 the applicant instituted proceedings in the Dzerzhynskyy District Court of Kharkiv against the local authorities claiming the right to privatise the plot of land on which his house stood.

On 8 January 2002 the court rejected the claim as unsubstantiated. The applicant requested an extension of the procedural time-limit for lodging his appeal against the above judgment, as he had found out about it only on 18 March 2002, and the courts granted the extension requested.

On 17 September 2002 the Kharkiv Regional Court of Appeal quashed the above judgment and remitted the case for fresh consideration.

On 27 March 2003 the Dzerzhynskyy Court rejected the applicant’s claim. It found that the authorities had fixed compensation for the land, but he had not applied for it. The court explained that the applicant was entitled to apply to the local authorities to receive the compensation.

On 15 July 2003 the Court of Appeal upheld the above judgment.

On 12 May 2005 the Supreme Court, sitting in camera as a panel of three judges, upheld the lower courts’ decisions and rejected the applicant’s appeal in cassation as unsubstantiated. The applicant was served with a copy of the final ruling on 18 June 2005.

In the course of the proceedings the courts adjourned four hearings upon the applicant’s requests or due to his failure to appear. Furthermore, nineteen hearings were adjourned due to the absence or illness of the judge dealing with the case, absence of the respondents, their requests for adjournments or for unspecified reasons.

2. The second set of proceedings

In 1999 the local authorities annulled the State registration of the applicant’s title to the house.

On 19 April 2006 the Dzerzhynskyy Court invalidated the authorities’ decision. It also invalidated their decision of 11 June 1986 (see paragraph 5 above). On 16 October 2008 the same court confirmed the applicant’s title to the house in question.

15. As it appears from the case file, subsequently the applicant lodged a new request with the authorities for privatisation of the land surrounding his house and its examination is under-way.

The local authorities sought a review of the judgment of 16 October 2008, allegedly because their representatives had been unable to be present in the hearing, but their request was dismissed. According to the applicant, the authorities also requested the courts to review the judgment of 19 April 2006. He provided no details as to the outcome of the latter request.

THE LAW

I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS

The applicant complained that the length of the first set of 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 Court notes that the period to be taken into consideration began only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. 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 18 June 2005, when the applicant received a copy of the final ruling (see Widmann v. Austria, no. 42032/98, § 29, 19 June 2003, and Gitskaylo v. Ukraine, no. 17026/05, § 34, 14 February 2008). The proceedings thus lasted for about seven years and nine months for three levels of jurisdiction.

A. Admissibility

The Court notes that the 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 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 circumstances of the case, the Court observes that major delays took place during the examination of the case by the Dzerzhynskyy Court between 11 September 1997 and 8 January 2002 (four years and four months) and by the Supreme Court between 15 July 2003 and 12 May 2005 (one year and eight months). Although the applicant somewhat contributed to some of these delays, the Court considers that he cannot be held responsible for them. Furthermore, the case was neither legally nor factually complex. As regards the fact that the courts had to adjourn the hearings on a number of occasions (see paragraph 12 above), the Court recalls that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see Moroz and Others v. Ukraine, no. 36545/02, § 60, 21 December 2006). In the light of the foregoing, the Court finds that the main responsibility for the protracted length of the proceedings rested with the State.

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, among many other authorities, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, cited above, § 62).

Having examined all the material before 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 complained under Articles 6 § 1 and 13 of the Convention about the unfairness and outcome of the first set of proceedings and about the lack of public hearing in the Supreme Court. He also complained under Article 1 of Protocol No. 1 that he could not privatise the land on which his house stood and that he had been deprived of his house without any compensation. The applicant further complained under Article 6 § 1 of the Convention about the authorities’ attempts to have the court decisions adopted in the course of the second set of proceedings reviewed.

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.

27. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 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, costs and expenses

The applicant claimed a global sum of 10,500 euros (EUR) comprising compensation for non-pecuniary damage and unspecified costs and expenses.

The Government contested the claim as unsubstantiated.

The Court notes that the applicant must have sustained some non-pecuniary damage on account of the violation found. Ruling on an equitable basis, it awards him EUR 1,200 under this head. As regards the claim for costs and expenses, the Court notes that it is unspecified and not supported by any documents and, therefore, rejects it.

B. 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 under Article 6 § 1 of the Convention concerning the excessive length of the first set of 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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the 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 amount 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 16 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Mark Villiger
Deputy Registrar President

YEFREMOV v. UKRAINE - 43799/05

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YEFREMOV v. UKRAINE - 43799/05

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Quick orient — first passages from judgment

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More EU & Human Rights cases

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