CASE OF MANGADASH AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF MANGADASH AND OTHERS v. UKRAINE

(Applications nos. 14018/08, 14835/08 and 31423/08)

JUDGMENT

STRASBOURG

14 June 2012

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

In the case of Mangadash and Others v. Ukraine,

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

Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 22 May 2012,

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

PROCEDURE

1. The cases originated in three applications (nos. 14018/08, 14835/08 and 31423/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Ms Nina Ivanovna Mangadash (“the first applicant”), Ms Zinaida Vladimirovna Pavlenko and Mr Viktor Vladimirovich Shabanov (“the second and the third applicants”), and Mr Yevgeniy Vasylyovych Aleksandrov (“the fourth applicant”), on 6 March, 12 March and 14 June 2008, respectively.

2. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.

3. Notice of the applications was given to the Government by the decisions of the President of the Fifth Section of 2 September 2010, 12 July and 25 August 2010, respectively.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1939, 1937, 1940 and 1949, respectively. The first applicant lives in the village of Konstantynopil, the second and the third applicants in Melitopol and the fourth applicant in Ivano-Frankivsk

I. proceedings instituted by the first applicant

5. On 14 February 2000 the first applicant initiated a land-related dispute with an agricultural enterprise.

6. Following two remittals of the case by the appellate court to the first‑instance court for fresh examination, on 15 April 2004 the Velyka Novosilka Town Court found against the first applicant.

7. On 1 July 2004 and 5 September 2007 the Donetsk Regional Court of Appeal and the Kyiv City Court of Appeal (sitting as a court of cassation), respectively, upheld the aforementioned judgment.

8. There were eight adjournments in the proceedings due to the defendant company’s failure to appear for hearings. The first applicant’s absence caused one such adjournment.

II. proceedings instituted by the SECOND AND THE THIRD applicantS

9. On 1 December 1995 the second and the third applicants initiated a land dispute against their neighbour.

10. On 20 November 2007 the proceedings, which had taken place before the courts of three levels of jurisdiction, were completed by a final ruling of the Odessa Regional Court of Appeal (sitting as a cassation court) finding against the applicants.

11. In the course of the proceedings, there was one remittal of the case from the appellate court to the first-instance court for fresh consideration. The courts also ordered five forensic technical expert examinations. Furthermore, there were nine adjournments in the proceedings due to the parties’ failure to appear for hearings.

III. proceedings instituted by the FOURTH applicant

12. On 13 November 2000 the fourth applicant instituted a civil dispute against his neighbour seeking acknowledgement of his entitlement to a land plot and a permit to pursue certain construction works. Subsequently, the local authorities were involved in the proceedings as defendants. The fourth applicant’s neighbour, in turn, brought a counterclaim.

13. Following the examination of the case by the courts of two levels of jurisdiction which had allowed the fourth applicant’s claim in part, on 21 January 2008 the Supreme Court quashed the lower courts’ decisions for the most part and remitted the case back to the first-instance court for fresh examination.

14. According to the parties, the proceedings remain pending before the first-instance court.

15. In the course of the proceedings, the applicant amended his claims several times. The courts also ordered four forensic technical expert examinations at the defendants’ requests.

THE LAW

I. JOINDER OF THE APPLICATIONS

16. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common legal background (see Petrov and Others v. Ukraine, nos. 44654/06, 32525/08 and 35537/08, § 31, 15 November 2011).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS

17. The applicants complained that the length of the proceedings in their cases 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 ...”

18. The Government contested that argument. They stated that the applicants had themselves protracted the proceedings due to adjournments and various procedural requests. While the Government admitted that the proceedings in the cases of the first and the fourth applicants had not been complex, they considered that the dispute was complicated in the case of the second and the third applicants, as witnessed by the quantity of the expert examinations (see paragraphs 11 and 15 above). They also noted that all the proceedings at hand had been somewhat protracted because of the excessive case-load of the Supreme Court, that problem having been eventually resolved by legislative measures of February 2007, under which the backlog of cassation appeals was distributed among courts of appeal.

19. The period to be taken into consideration as to the proceedings brought by the first applicant began on 14 February 2000 and ended on 5 September 2007, thus lasting around seven years and seven months. The period to be taken into consideration as to the second and the third applicants began on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect, and ended on 20 November 2007, thus lasting more than ten years. As regards the fourth applicant’s case, the consideration period began on 13 November 2000 and, according to the information in the case file, has not been completed so far, thus lasting more than twelve years. All the proceedings in question went through three levels of jurisdiction.

A. Admissibility

20. The Government argued that application no. 14835/08 was incompatible ratione temporis insofar as it concerned events prior to the entry into force of the Convention in respect of Ukraine on 11 September 1997.

21. The Court notes that it has already determined 11 September 1997 as the dies a quo in the present case (see paragraph 19 above). In assessing the reasonableness of the time that elapsed after that date, it will take however account of the state of the proceedings at the time.

22. The Court further notes that these parts of the applications are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They should therefore be declared admissible.

B. Merits

23. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

24. Turning to the facts of the present case, the Court notes that the proceedings concerned land disputes in which no particular complexity is discernable. As regards the the first applicant’s case, two remittals are to be viewed as an indication of deficiencies in the proceedings for which the applicant bears no responsibility (see, mutatis mutandis, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). Such an indication appears even stronger in the case of the fourth applicant, where the Supreme Court sent the case back to the first-instance court after it had already been examined by the courts of two levels of jurisdiction for almost eight years.

25. As regards the proceedings brought by the second, the third and the fourth applicants, even though the examination of their cases might have been complicated by several expert examinations, the Court recalls that it is within the competence of a court to decide whether or not to seek outside advice (see Dulskiy v. Ukraine, no. 61679/00, § 71, 1 June 2006).

26. As to the applicants’ conduct, the Court considers that it alone cannot justify the overall length of the proceedings.

27. The justification for the delay before the courts of cassation in all three applications’ proceedings, provided by the Government (see paragraph 18 above), may not be accepted, as by the time the impugned legislative amendments were introduced the applicants’ cassation appeals had been waiting for consideration for more than two and a half years in the case of the first applicant, about one and a half year for the second and the third applicants, and more than two years in the case of the fourth applicant.

28. In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in question.

29. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the ones in the present cases (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 cases 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

31. Relying on Article 6 of the Convention, the applicants further complained about the alleged unfairness and outcome of the proceedings. The fourth applicant also complained that his rights under Article 1 of Protocol No. 1 had been infringed.

32. Having carefully examined the applicants’ remaining complaints 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 and must be dismissed pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. 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

34. The first applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. The second and the third applicants claimed jointly 100,000[1] Ukrainian hryvnias (UAH) under that heading. The fourth applicant claimed UAH 475,165[2] in respect of pecuniary and UAH 950,330[3] in respect of non-pecuniary damage.

35. The Government contested these claims, apart from the fourth applicant’s claim in respect of non-pecuniary damage which was left uncommented.

36. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects these claims. The Court considers, however, that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the first applicant EUR 1,300, the second and the third applicants, jointly, EUR 2,400, and the fourth applicant EUR 3,000 under that head.

B. Costs and expenses

37. The first applicant did not claim any costs and expenses; the Court therefore makes no award.

38. The second and the third applicants claimed an unspecified amount for the costs and expenses incurred before the domestic courts and UAH 200[4] for those incurred before the Court. The fourth applicant claimed UAH 995,13[5] as reimbursement of costs and expenses before the national courts including UAH 763,90[6] as legal fees, and further UAH 266,48[7] as fees of his legal representation in the proceedings before the Court.

39. Apart from the fourth applicant’s claim for legal fees which was left for the Court’s discretion, the Government objected to the above claims noting that they had no relation to the cases before the Court.

40. Regard being had to the documents in its possession and to its case-law, the Court rejects the claims for costs and expenses in the domestic proceedings and considers it reasonable to award, for the proceedings before the Court, the sum of EUR 19 to the second and the third applicants jointly, and EUR 24 to the fourth applicant.

C. Default interest

41. The Court considers it appropriate that the default interest rate 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. Decides to join the applications;

2. Declares the applicants’ complaints under Article 6 § 1 of the Convention about the length of the proceedings admissible and the remaining complaints inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts:

- to Ms Mangadash EUR 1,300 (one thousand three hundred euros) for non-pecuniary damage;

- to Ms Pavlenko and Mr Shabanov EUR 2,400 (two thousand four hundred euros) for non-pecuniary damage and EUR 19 (nineteen euros) for costs and expenses, jointly;

- to Mr Aleksandrov EUR 3,000 (three thousand euros) for non-pecuniary damage and EUR 24 (twenty four euros) for costs and expenses,

plus any tax that may be chargeable to the applicants, 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;

5. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 14 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsMark Villiger
Deputy RegistrarPresident

[1] Around EUR 9,550.

[2] Around EUR 61,300.

[3] Around EUR 122,600.

[4] Around EUR 19.

[5] Around EUR 91.

[6] Around EUR 70.

[7] Around EUR 24.

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