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FIFTH
SECTION
CASE OF
KUTSENKO v. UKRAINE (No. 2)
(Application
no. 2414/06)
JUDGMENT
STRASBOURG
3 February
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the
Convention. It may be subject to editorial
revision.
In the case of Kutsenko v. Ukraine (no. 2),
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Karel
Jungwiert,
Isabelle Berro-Lefèvre, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2414/06) 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 Tamara Ananyevna Kutsenko (“the applicant”),
on 21 September 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- On
10 February 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 1960. She died in June 2008. Her widower, Mr
Kutsenko Oleh Mykolayovych, submitted that he wished to pursue the
application.
- On
14 June 2000 the applicant lodged a claim with the Bahliyskyy
District Court of Dniprodzerzhynsk (“the Bahliyskyy Court”)
against the State Bailiffs’ Service. She sought compensation
for pecuniary and non pecuniary damage allegedly caused by
lengthy non-enforcement of two judgments given in her favour against
a State enterprise. The debtor State enterprise participated in the
proceedings as a third party.
- On
10 July 2001 the Bahliyskyy Court found no fault on the part of the
Bailiffs and rejected the applicant’s claims.
- On
26 November 2001 the Dnipropetrovsk Regional Court of Appeal quashed
the judgment of 10 July 2001 because of the failure of the
first instance court to assess all the circumstances of the case
and to give reasons for its decision and remitted the case for fresh
examination.
- On
25 September 2003 the Bahliyskyy Court rejected the applicant’s
claims. It noted that the judgments of 15 March 2000 and 25 February
2001 had been enforced in full on 6 July 2000 and 5 April 2002,
respectively, and found no fault on the part of the Bailiffs for the
alleged lengthy enforcement of the judgments.
- On
30 June 2004 the Dnipropetrovsk Regional Court of Appeal rejected the
applicant’s appeal which she had to re-submit on two occasions
in order to comply with procedural requirements and upheld the
judgment of 25 September 2003.
- On
26 July 2004 the applicant appealed in cassation.
- On
29 May 2007 the Crimea Court of Appeal, acting as a court of
cassation, found no grounds to review the applicant’s case in
cassation.
- In
the course of the proceedings before the first-instance court the
applicant supplemented her claims on four occasions. Six times the
proceedings were adjourned on the applicant’s request or
because of her or her representative’s failure to appear which
in total caused a delay of about six months. Sixteen times the
proceedings were adjourned because of other participants’
(respondent, third party, experts) failure to appear or on their
requests and on two occasions because of the absence of the judge
which in total caused a delay of one year and five months.
THE LAW
I. AS TO THE LOCUS STANDI OF MR KUTSENKO
- The
applicant’s widower, Mr Kutsenko, expressed the wish to pursue
the application following the applicant’s death. He submitted
that he was the applicant’s heir.
- The
Government submitted that Mr Kutsenko did not present any documents
to prove that he was the applicant’s heir. Mr Kutsenko
maintained that he was the applicant’s heir.
- The
Court recalls that in a number of cases in which applicants died in
the course of the proceedings, the Court has taken into account the
statements of their heirs or of close family members expressing the
wish to pursue the proceedings before the Court. This is particularly
the case concerning applications which were introduced by applicants
themselves and only continued by their widows after the applicants’
death (see, for example, Stojkovic v. “the former Yugoslav
Republic of Macedonia”, no. 14818/02, §§25-26,
8 November 2007; and Ivanovski and Others v. “the former
Yugoslav Republic of Macedonia”, no. 34188/03, §§
15 and 18, 26 November 2009).
- The
Court therefore finds that the applicant’s widower has standing
to pursue the application. It will therefore continue dealing with
the case at request of Mr Kutsenko. However, reference will still be
made to the applicant throughout the ensuing text.
II. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads 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
period to be taken into consideration began on 14 June 2000 and ended
on 29 May 2007. It thus lasted six years, eleven months and fifteen
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 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 facts of the present case, the Court
notes that the case was not that complex to justify the overall
length of the proceedings of about six years and eleven months. While
it is true that the applicant caused some delays in the proceedings,
substantial delays were caused by other participants in the
proceedings all of which represented the State or the State-owned
entity (see paragraphs 6 and 13 above). In this connection the Court
notes that no appropriate steps were taken by the domestic
authorities to ensure their compliance with the procedural obligation
of attending the court hearings (see Golovko v. Ukraine,
no. 39161/02, § 62, 1 February 2007). The Court further observes
that the applicant’s appeal in cassation was pending
examination for two years and ten months without any acceptable
justification for this (see paragraphs 11 and 12 above). The
Court therefore concludes that the State authorities bear the primary
responsibility for the excessive length of the proceedings in the
present case.
- 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; Voishchev v. Ukraine,
no. 21263/04, §§ 25-37, 19 February 2009; and Buryak
v. Ukraine, no. 1866/04, §§ 21-22, 19 February
2009).
- 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.
III. OTHER COMPLAINTS
- The
applicant also complained under Articles 1, 6, 13 and 34 of the
Convention and Article 1 of Protocol No. 1 about the outcome of the
proceedings and that the Bailiffs had failed to enforce in due time
the judgments against the State enterprise. The applicant further
complained of unfairness of the cassation proceedings and alleged
lack of access to a court on account of the ruling given on 29 May
2007.
- 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 and 4 of the Convention.
IV. 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 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage on account of the excessive length of
the civil proceedings in her case. Ruling on an equitable
basis, it awards EUR 1,200 under this head to Mr Kutsenko.
B. Costs en expenses
- The
applicant did not submit any claim for costs and expenses.
Accordingly, the Court makes no award under this head.
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
- Declares the complaint under Article 6 § 1
of the Convention concerning the 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 Mr Kutsenko, within three months, EUR
1,200 (one thousand two hundred euros) in respect of non pecuniary
damage, 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 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 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger Deputy Registrar President
