FIFTH SECTION
CASE OF ONOPKO v. UKRAINE
(Application no. 39878/05)
JUDGMENT
STRASBOURG
2 February 2012
This judgment is final. It may be subject to editorial revision.
In the case of Onopko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mark Villiger, President,
Elisabet Fura,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 10 January 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 39878/05) 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 Nina Sergiyivna Onopko (“the applicant”), on 8 November 2005.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
3. On 29 April 2010 the President of the Fifth Section decided to give notice of the application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1962 and lives in Poltava.
5. In August 1991 the applicant with her minor son moved to Poltava from their town found to be contaminated as a result of the Chornobyl nuclear disaster. They were housed in a State hostel.
6. In June 1992 the applicant was placed on a waiting list for obtaining free housing as a victim of the Chornobyl disaster.
A. The first set of proceedings
7. In July 2000 the applicant instituted proceedings at the Zhovtnevyy District Court of Poltava (“the Zhovtnevyy Court”) against the local authorities seeking allocation of a free flat.
8. On 28 February 2001 the Zhovtnevyy Court ruled that the applicant should be provided with free housing under the conditions prescribed by law and according to her place in the waiting list.
9. On 29 March 2001 the Poltava Regional Court (since June 2001 – the Poltava Regional Court of Appeal, hereinafter – “the Poltava Regional Court”) upheld this judgment.
10. On 23 May 2002 the Supreme Court quashed the above ruling for some procedural shortcomings and remitted the case for fresh examination to the appellate court.
11. On 27 June 2002 the Poltava Regional Court rejected the applicant’s appeal again.
12. Between July 2002 and April 2003 the courts at two levels considered the admissibility of the appeal in cassation lodged by the applicant. In April 2003 she submitted a rectified appeal in cassation with the Supreme Court.
13. On 11 December 2003 the Supreme Court started the proceedings.
14. On 12 May 2005 it rejected the applicant’s appeal in cassation as unsubstantiated.
B. The second set of proceedings
15. On 26 February 2002 the applicant instituted administrative proceedings in the Zhovtnevyy Court against the Poltava City Council seeking free housing as a matter of priority.
16. From 8 July 2004 to 29 June 2005 these proceedings were stayed at the applicant’s request, pending the outcome of the first set of the proceedings.
17. On 8 February 2006 the Zhovtnevyy Court rejected the claim as being without basis. The applicant appealed.
18. On 15 May 2006 the Poltava Regional Court allowed her appeal in part. It quashed the impugned judgment and remitted the case for fresh examination to the first-instance court, having held however that it fell to be examined under the civil rather than the administrative procedure.
19. On 28 November 2007 the Higher Administrative Court quashed the aforementioned ruling and remitted the case to the appellate court with a conclusion that it was civil and not administrative.
20. On 5 August 2009 the Kharkiv Regional Court of Appeal (“the Kharkiv Regional Court”), to which the case was referred on an unspecified date, found against the applicant.
21. On 2 February 2011 the Higher Administrative Court upheld the lower courts’ decisions.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE SECOND SET OF PROCEEDINGS
22. The applicant complained that the length of the second 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 relevant part:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
A. Admissibility
23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
24. The applicant maintained that it had taken the domestic courts an unjustifiably long period of time to adjudicate her claim which did not raise any complex issues and was of paramount importance for the well-being of her family.
25. The Government considered the length of the proceedings to be reasonable. They contended that, if there had been any delays, they were attributable either to the applicant’s procedural actions or to the parties’ behaviour in general. The Government referred, in particular, to the stay of the proceedings for about a year at the applicant’s request.
26. 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).
27. The Court observes that the period to be taken into consideration in the present case began on 26 February 2002 and ended on 2 February 2011, thus lasting around nine years for three levels of jurisdiction. The Court does not lose sight of the fact that, as pointed out by the Government, during about a year of this period the proceedings were stayed at the applicant’s request.
28. 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).
29. 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. Having regard to its case-law on the subject, the Court considers that the length of the proceedings, even if the mentioned one-year stay period is deducted from it, was excessive.
30. There has accordingly been a breach of Article 6 § 1 of the Convention.
II. OTHER COMPLAINTS
31. The applicant also complained under Article 6 § 1 of the Convention about the alleged unfairness of both sets of proceedings and the length of their first set. She further complained under Article 1 of Protocol No. 1 about the failure of the State to provide her family with free housing.
32. 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.
33. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. 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
35. The applicant claimed 400,000 euros (EUR) in respect of non‑pecuniary damage and EUR 30,000 in respect of pecuniary damage.
36. The Government contested these claims.
37. 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, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 2,400 under that head.
B. Costs and expenses
38. The applicant also claimed EUR 7 for the costs and expenses incurred before the Court.
39. The Government left the matter to the Court’s discretion.
40. Regard being had to the documents in its possession and to its case‑law, the Court considers that the sum claimed should be awarded in full.
C. Default interest
41. 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 concerning the excessive length of the second set of proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the second set of proceedings;
3. Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to be converted into national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 7 (seven euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 2 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsMark Villiger Deputy Registrar President
Full & Egal Universal Law Academy