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FIFTH
SECTION
CASE OF VOLCHKOVA v. UKRAINE
(Application
no. 17059/07)
JUDGMENT
STRASBOURG
22
September 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Volchkova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 17059/07) 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, Mrs Olga Leonidivna Volchkova (“the
applicant”), on 4 April 2007.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice.
- On
25 August 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 1952 and lives in Poltava.
- On
2 June 2000 she lodged a claim with the Poltava Court against the V.
company in a corporate dispute between them.
- On
30 January 2001 the court requested the applicant to rectify her
claim in accordance with the procedural formalities by 10 February
2001.
- On
29 May 2006 the same court rejected the applicant’s claim as
lodged out of the period of limitation.
- On
5 October 2006 and 8 August 2007, respectively, the Poltava Regional
Court of Appeal and the Higher Commercial Court upheld the above
judgment.
- According
to the Government, in the course of the proceedings nine hearings
were adjourned at the applicant’s requests or due to her or
both parties’ failure to appear. The applicant disagreed that
three hearings had been adjourned at her request or due to her
failure to appear. The above delays on the applicant’s part
protracted the proceedings to approximately eight and a half months.
Some twenty one hearings were adjourned mainly due to the absence of
the respondent, its requests for the adjournments, the need to
collect additional documents, sickness of a judge, transfer of the
case to another judge, moving of the court to another premise or for
unspecified reasons.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Articles 6 § 1
and 13 of the Convention that the length of the proceedings had been
incompatible with the “reasonable time” requirement. The
Court considers that the complaint should be examined solely under
Article 6 § 1, 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 stating that the case had been
complex and that the applicant had contributed to the overall length
of the proceedings.
- The
period to be taken into consideration began on 2 June 2000 and ended
on 8 August 2007. It thus lasted seven years two months and six days
for three levels of jurisdiction.
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
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).
15. Turning
to the particular circumstances of the case,
the Court considers that the complexity of the case and the conduct
of the applicant, who somewhat contributed to the length of the
proceedings (see paragraphs 6 and 9 above), cannot explain their
overall length. On the other hand, it finds that the protraction of
the proceedings was mainly caused by the lengthy examination of the
case by the first-instance court (see paragraphs 5 and 7 above) and
by twenty one adjournments of the hearings (see paragraph 9 above).
The Court concludes, therefore, that the main responsibility for the
lengthy duration of the proceedings rests 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 Frydlender,
cited above; Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; and Moroz
and Others v. Ukraine, no. 36545/02,
§ 62, 21 December 2006).
- 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
ALLEGED VIOLATIONS OF THE CONVENTION
18. The
applicant also complained under Articles 6 § 1 and 13 of the
Convention and Article 1 of Protocol No. 1 about and on account of
the unfavourable outcome of the proceedings.
- 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.
- It follows that this part of the application must be
declared inadmissible for being 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, costs and expenses
- The
applicant claimed a global sum of 150,000
Ukrainian hryvnias (UAH) for pecuniary and non-pecuniary damage as
well as for costs and expenses incurred before the domestic courts
and the Court. She provided copies of postal receipts for
correspondence with the Court to the amount of UAH 228.95.
- 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, it considers that the applicant
must have sustained non pecuniary damage. Ruling on an equitable
basis, the Court awards her EUR 600 under
that head.
25. Furthermore,
regard being had to the documents in its possession and to
its case-law, the Court rejects the claim for costs and
expenses in the domestic proceedings and considers it reasonable to
award the applicant EUR 20 for the proceedings before 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 concerning the excessive
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 600 (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
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 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 22 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
