FIFTH SECTION
CASE OF GEREGA v. UKRAINE
(Application no. 30713/05)
JUDGMENT
STRASBOURG
21 December 2010
This judgment is final but it may be subject to editorial revision.
In the case of Gerega 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 30 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 30713/05) 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 Galyna Marianivna Gerega (“the applicant”), on 26 July 2005.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3. On 16 March 2010 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the court proceedings in the applicant’s case 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
4. The applicant was born in 1974 and lives in the Lviv Region.
5. In 1991 Mr A. (the applicant’s relative) lodged a claim with the Staryy Sambir Court against the applicant challenging her title to a house which she had inherited under her aunt’s will. In 1993, following the request of Mr A., the court discontinued the proceedings.
6. On 24 July 1997, following the request of the widow of Mr A. (who had died in the meantime), the same court re-opened the case under the newly-discovered circumstances procedure.
7. On 6 September 2000 the Galytskyy District Court of Lviv delivered a judgment in the case. On 18 December 2000 the Lviv Regional Court of Appeal quashed it and remitted the case for fresh consideration.
8. On 18 March 2003 the Galytskyy Court invalidated a part of the will.
9. On 23 June 2003 and 15 November 2004 respectively the Lviv Court of Appeal and the Supreme Court upheld the above judgment. The applicant received the decision of 15 November 2004 on 29 January 2005.
10. Subsequently, the applicant unsuccessfully sought review of the case under the newly-discovered circumstances procedure.
11. According to the Government, in the course of the proceedings two hearings were adjourned upon the applicant’s requests, three hearings due to her failure to appear and three other hearings due to both parties’ failure to appear. The applicant disagreed. According to her, between 3 and 30 June 2000 she underwent in-patient treatment and thus could not attend one of the hearings referred to by the Government. Three hearings were adjourned due to the absence of the judge or upon the other party’s request.
THE LAW
I. SCOPE OF THE CASE
12. Following the Court’s partial admissibility decision of 16 March 2010, the applicant made further submissions, in which she reiterated the complaints she had made when lodging the application.
13. In its partial admissibility decision, the Court adjourned the examination of the applicant’s complaint about the length of the court proceedings. Furthermore, it declared the remaining complaints inadmissible. Therefore, the scope of the case before the Court is now limited to the length-of-proceedings complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
14. The applicant complained that the length of the court proceedings in her case 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 ...”
15. The Government contested that argument stating, in particular, that the case had been complex and that the applicant had contributed to the length of the proceedings by having failed to attend some of the hearings and by having lodged several procedural requests.
16. The Court notes that the period to be taken into consideration began on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. 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. The period in question ended on 29 January 2005, when the applicant was served with a copy of the final ruling (see Widmann v. Austria, no. 42032/98, § 29, 19 June 2003, and Gitskaylo v. Ukraine, no. 17026/05, § 34, 14 February 2008). The proceedings thus lasted for about seven years and four months and involved the courts of three levels of jurisdiction.
A. Admissibility
17. 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
18. 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).
19. Turning to the circumstances of the case, the Court notes that substantial delays in the proceedings took place during the consideration of the case by the courts of first instance (three years and over two years, respectively). Having regard to the material in its possession, the Court considers that the complexity of the case and the applicant’s conduct cannot justify these delays. As the Government failed to provide plausible explanation in this respect, the Court finds that the main responsibility for the protracted length of the proceedings rested with the State.
20. 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, among many other authorities, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006).
21. 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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
23. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
24. The Government contested the claim.
25. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,200 under this head.
B. Costs and expenses
26. The applicant claimed 2,000[1] Ukrainian hryvnias (UAH) for the expenses incurred by her in the domestic proceedings and for correspondence expenses in the proceedings before the Court. She provided copies of postal receipts for correspondence with the Court to the amount of UAH 467.16[2].
27. The Government contested the above claim.
28. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for expenses in the domestic proceedings and awards the applicant EUR 45 for the proceedings before it.
C. Default interest
29. 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 remainder of the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand two hundred euros) in respect of non-pecuniary damage and EUR 45 (forty five euros) in 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsRait Maruste
Deputy RegistrarPresident
[1]. Around EUR 192
[2]. Around EUR 45
Full & Egal Universal Law Academy