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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

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

Peer Lorenzen, President, Renate Jaeger, Rait Maruste, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges, Mykhaylo Buromenskiy, ad hoc judge, and Claudia Westerdiek, Section Registrar ,

The case originated in an application (no. 39855/04) 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, Mrs Vera Yefremovna Udovik (“the applicant”), on 26 October 2004.

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

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The Court notes that the period to be taken into account began on the date of lodging of the applicant’s civil claim for compensation in the framework of the criminal proceedings (see Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, § 124; N.B. v. Ukraine, no. 17945/02, § 36, 3 April 2008). In the light of the material available in the case file, the Court concludes that the applicant lodged her claim on 21 February 2003. The Court further notes that the proceedings ended on 20 August 2009 having therefore lasted for six and a half years before three levels of jurisdiction.

A. Admissibility

The Government maintained that the application was inadmissible as the applicant complained of the length of the criminal proceedings and not of the length of consideration of her civil claim lodged in the framework of those proceedings. The applicant did not comment on that argument.

The Court observes that the applicant’s right to compensation which she sought by lodging her civil claim within the framework of criminal proceedings depended on the outcome of those proceedings (see Tomasi v. France, cited above, §§ 120-122). Therefore, it rejects the Government’s argument.

The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Government submitted that there has been no violation of the Convention in the present case.

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 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 considers that the complexity of the case and the applicant’s conduct cannot explain the overall length of the proceedings. The Court finds that a number of delays (two expert examinations, the repeated adjournments of the hearings due to the absence of the defendants’ lawyers or witnesses, two remittals of the case for fresh consideration) were attributable to the domestic courts. It concludes 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, for instance, Baglay v. Ukraine, no. 22431/02, § 33, 8 November 2005, and N.B. v. Ukraine, cited above, § 43).

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. It finds 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 violation of Article 6 § 1 of the Convention.

II. 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 EUR 20,000 in non-pecuniary damage. The Government contested that amount.

The Court notes that the applicant must have sustained non-pecuniary damage on the basis of the violation found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,400 in compensation for non-pecuniary damage.

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 application admissible;

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 1,400 (one thousand four hundred euros) 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, plus any tax that may be chargeable;

(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 18 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President

UDOVIK v. UKRAINE - 39855/04

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UDOVIK v. UKRAINE - 39855/04

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