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FIFTH
SECTION
CASE OF
ANDRENKO v. UKRAINE
(Application
no. 50138/07)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Andrenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as
a Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 50138/07) 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, Ms Nina Alekseyevna Andrenko (“the applicant”),
on 2 November 2007.
- The
applicant was represented by Mr A. Kristenko, a lawyer practising in
Kharkiv. 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.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Kharkiv.
- On
20 April 1999 the applicant lodged a claim with the Kominternivskyy
District Court of Kharkiv (“the Kominternivskyy Court”)
against her brother. She sought the annulment of her father’s
will.
- On
26 November 2001 the Kominternivskyy Court left the claim without
examination because the parties had failed to attend.
- On
14 January 2002 the applicant lodged the same claim with the
Kominternisvkyy Court. On the same date the court allowed the
applicant’s request for securing the claim and seized the
respondent’s property.
- On
24 November 2008 the Kominternivskyy Court rejected the applicant’s
claims as unsubstantiated.
- On
12 December 2008 the applicant appealed against the judgment. On 12
January 2009 the Khrakiv Regional Court of Appeal left the appeal
without examination as lodged out of time.
- On
12 August 2009 the Supreme Court allowed the applicant’s appeal
in cassation, which she had to resubmit on one occasion in order to
comply with procedural requirements, quashed the decision of 12
January 2009 and sent the case for examination to the Court of
Appeal.
- On
14 October 2009 the Kharkiv Regional Court of Appeal examined the
applicant’s appeal on the merits, after she had rectified
certain shortcomings in her appeal. The court of appeal quashed the
judgment of 24 November 2008, finding that the case had not been
duly examined by the first-instance court and remitted the case for
fresh examination.
- The
case is currently pending before the first-instance court.
- In
the course of the proceedings before the first-instance court, on
1 June 2004 and 15 March 2006 the applicant supplemented her
claims. There were three expert examinations ordered on the
applicant’s request and the proceedings were accordingly
suspended for a total period of approximately eight months. The
hearings were adjourned twenty-two times because of the applicant’s
failure to appear or on her requests. On thirty-two occasions the
hearings were adjourned because of the other participants’
failure to appear and of the judge’s absence or for technical
reasons.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings was
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 ...”
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
applicant complained that the length of the proceedings was
excessive.
- The
Government submitted that the subject-matter of the domestic
proceedings was of itself complex, involved expert examinations and
had been also complicated by the applicant’s adjustment of her
claims. They further maintained that the applicant had contributed to
the length of the proceedings by failing to appear at the hearings,
by lodging requests for their adjournment and by lodging appeals with
the higher courts. They argued that there had been no substantial
delays which could be attributed to the State.
- The
Court notes that the period to be taken into consideration began on
14 January 2002 and has not yet ended. It has thus lasted eight years
and nine months.
- 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 case, the Court notes that the domestic
proceedings concerned the question of validity of a will. Although
the applicant amended her claims on two occasions and the courts had
to seek experts’ opinions to decide on the case, it cannot be
considered to be of a particular complexity.
- The
Court further observes that it took the first-instance court six
years and ten months to deliver a judgment in the applicant’s
case (see paragraphs 7 and 8 above). The judgment was subsequently
quashed by the court of appeal because of lack of analysis on the
part of the first-instance court which has not yet completed the
consideration of the case (see paragraphs 11 and 12 above). Although
the applicant somewhat contributed to the length of the proceedings
(see paragraph 13), her behaviour alone cannot justify overall length
of eight years and nine months so far. 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, Pavlyulynets
v. Ukraine, no. 70767/01, §
49-53, 6 September 2005; Vashchenko
v. Ukraine, no. 26864/03, § 50,
26 June 2008, Pysatyuk v.Ukraine, no. 21979/04, §§
24, 30-34, 16 April 2009; and Popilin v. Ukraine, no.
12470/04, §§ 24-31, 16 April 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.
II. OTHER COMPLAINTS
- The
applicant complains under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 of unfairness and about the outcome of
the proceedings.
- The
Court notes that the proceedings complained of are pending before the
domestic courts. It follows these complaints are premature and must
be rejected under Article 35 §§ 1 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
- The
applicant claimed 2,000 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 her EUR 1,600 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 372 for costs and expenses she incurred in
the domestic proceedings and before the Court.
- The
Government submitted that only a part of the applicant’s claims
were supported by copies of relevant documents. They also contended
that another part of the claims was not related to the examination of
the case by the Court.
- The
Court notes that the applicant provided relevant supporting documents
for the amount of EUR 20 she had paid for corresponding with the
Court. It therefore awards the applicant this amount for costs and
expenses.
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
1. 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 the applicant, within three months EUR
1,600 (one thousand and 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
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 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
