CASE OF BRATCHENKO v. UKRAINE

FIFTH SECTION

CASE OF BRATCHENKO v. UKRAINE

(Application no. 27234/04)

JUDGMENT

STRASBOURG 

18 November 2010

This judgment is final but it may be subject to editorial revision.

In the case of Bratchenko v. Ukraine,

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

Mark Villiger, President,
Karel Jungwiert,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 19 October 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 27234/04) 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, Ms Tamara Sergeyevna Bratchenko (“the applicant”), on 2 December 2002.

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

3. On 24 March 2009 the Court declared the application partly inadmissible and decided to communicate the complaint under Article 6 § 1 of the Convention about the length of the proceedings against a local police office and the proceedings against Mr B. and Mr S. to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

A. First set of proceedings

4. On 5 December 2001 the applicant instituted proceedings in the Leninsky Court of the Crimea (“the Leninsky Court”) against the Leninsky District Police Office (“the police office”) and the Leninsky Prosecutor's Office. She challenged their actions in investigating the criminal case against Mr R., who had inflicted light bodily harm on the applicant in August 1999. The applicant also claimed compensation for the damage caused to her.

5. Between 16 September 2002 and 20 November 2002 no hearings were held since the judge sitting in the case was on holiday.

6. On 20 January 2003 the Leninsky Court left the applicant's claim without consideration since she failed to appear. On 19 May 2003 the Leninsky Court reviewed its decision and the proceedings were resumed.

7. On 6 April 2004 the Leninsky Court partly allowed the claim and awarded the applicant UAH 15,000 (about EUR 2,278) in compensation for non-pecuniary damage, to be paid by the police office.

8. The applicant and the police office lodged their appeals against the judgment.

9. On 10 June and 23 June 2004 the Leninsky Court left the applicant's and the police office's appeals, respectively, without consideration due to their procedural shortcomings.

10. On 28 February 2005 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) dismissed the applicant's appeal against the ruling of 10 June 2004. On 25 April 2005 the applicant lodged an appeal in cassation against the ruling of 28 February 2005 with the Supreme Court.

11. There was no procedural activity from 25 April 2005 to 19 May 2007.

12. On 19 May 2007 the Supreme Court transferred the case to the Zaporizhzhya Regional Court of Appeal for consideration. On 27 November 2007 the latter, acting in its cassation jurisdiction, quashed the ruling of 28 February 2005 and transmitted the case to the Court of Appeal for consideration of the applicant's appeal against the ruling of 10 June 2004.

13. On 8 April 2008 the Court of Appeal quashed the ruling of 10 June 2004. On 20 May 2008 the Court of Appeal quashed the judgment of 6 April 2004 and terminated the proceedings since the first instance court had no jurisdiction to consider the case.

14. The applicant stated in her submissions that she had challenged the decision of 20 May 2008 before the Higher Administrative Court and the proceedings are still pending. However, she provided no documents in support of that statement. According to the records provided by the Government, the applicant lodged no appeal against the decision of 20 May 2008.

B. Second set of proceedings

15. In the period from September till December 1989 the applicant's apartment was used by the acquaintances of her son, Mr B. and Mr S, who moved in without her permission and, according to the applicant's submissions, damaged it.

16. On 11 January 1990 the applicant instituted proceedings in the Leninsky Court against Mr B. and Mr S. seeking compensation for pecuniary and non-pecuniary damage. On an unspecified date the case was transferred to the Kerch Court. On 29 October 1991 the latter left the applicant's claim without consideration. On 6 May 1992 the Court of Appeal of the Crimean Region quashed that ruling.

17. On 18 August 1995 the Kerch Court left the applicant's claim without consideration and discontinued the proceedings.

18. On 3 April 1998 the Presidium of the High Court of the Autonomous Republic of Crimea allowed the protest (extraordinary appeal) of its Deputy President against the ruling of 18 August 1995, quashed it and remitted the case to the Kerch Court for fresh consideration.

19. On 5 November 1998 the Kerch Court partly allowed the applicant's claims and awarded her 30,600 Ukrainian hryvnias (UAH), to be paid by Mr B. and UAH 7,400, to be paid by Mr S. The judgment was not appealed against and became final. It remained unenforced.

20. In January 2002 Mr B. asked the Kerch Court to renew a deadline to appeal against the judgment of 5 November 1998. On 6 March 2002 the Kerch Court granted his request. On 10 April 2002 the Court of Appeal quashed the judgment of 5 November 1998 and remitted the case to the Kerch Court. In particular, the Court of Appeal found that Mr B. had not been duly informed about the hearings in the case and that the judgment of 5 November 1998 had been adopted in his absence.

21. On 30 September 2002 the Supreme Court dismissed the applicant's appeal in cassation against the ruling of 10 April 2002.

22. On 12 December 2002 the Kerch Court partly allowed the applicant's claims and awarded her UAH 38,080 (about 6,840 euros, EUR), to be paid jointly by Mr B. and Mr S.

23. On 12 February 2003 the Kerch Court dismissed Mr B.'s appeal due to its procedural shortcomings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE FIRST SET OF PROCEEDINGS

24. 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 as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

25. The Government contested that argument.

26. The period to be taken into consideration began on 5 December 2001 and ended on 20 May 2008. It thus lasted more than six years and five months for three levels of jurisdiction.

A. Admissibility

27. 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

28. 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).

29. 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).

30. 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 first set of proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE SECOND SET OF PROCEEDINGS

31. The applicant further complained about the length of the second set of proceedings.

32. The Court notes that the proceedings pending prior to 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect, should not be taken into consideration for the purposes of the calculation of the overall length of the proceedings. 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. On that date, the proceedings had lasted over five and a half years before being discontinued in August 1995. Subsequent to 11 September 1997, there were no proceedings pending until 3 April 1998, when the proceedings were resumed after the quashing of the ruling of 18 August 1993.

33. The Court further notes that the judgment of 5 November 1998 was not appealed against and became final, that is, the proceedings were pending for a little over seven months. There were no proceedings between 5 November 1998 and 6 March 2002 when that judgment was quashed.

34. The proceedings in the applicant's case ended on 12 February 2003, that is, approximately a further 11 months.

35. The overall duration of the proceedings falling within the Court's competence, was a little more than 18 months. During this period the case was considered by the domestic courts at three levels of jurisdiction.

36. The Court further notes that there were no significant periods of inactivity attributable to the State during the time when case had been pending before the courts.

37. In view of the above, the Court concludes that the length of the second set of proceedings did not exceed a reasonable time within the meaning of Article 6 § 1 of the Convention.

38. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. 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

40. In her initial application the applicant claimed EUR 50,000 in respect of just satisfaction. Within the time-limit allotted by the Court for submission of her observations and just satisfaction claims, the applicant claimed award in respect of just satisfaction. However, she did not specify the amount.

41. The Government found the initial claims exorbitant and unsubstantiated. They further submitted that there were no grounds to award any sum since the applicant failed to provide her claims in respect of just satisfaction together with her observations.

42. 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, ruling on an equitable basis, it awards the applicant EUR 600 in respect of non-pecuniary damage.

B. Costs and expenses

43. In the present case the applicant failed to submit any separate claim; the Court therefore makes no award.

C. Default interest

44. 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 applicant's complaint under Article 6 § 1 about the length of the first set of proceedings admissible and her complaint about the length of the second set of proceedings inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the first set of proceedings;

3. 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 600 (six 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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 18 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen PhillipsMark Villiger
Deputy RegistrarPresident

 

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