FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46885/07
by Mariya Ivanivna LOS
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 27 September 2011 as a Committee composed of:
Boštjan M. Zupančič, President,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 25 September 2007,
Having regard to the comments submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Mariya Ivanivna Los, is a Ukrainian national who was born in 1955 and lives in Novograd-Volynsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 August 2000 the applicant instituted court proceedings against her former husband, seeking separation of their common house.
From 10 to 29 May 2000 and from 10 May to 5 November 2002 the proceedings were suspended pending the outcome of another set of civil proceedings linked to the applicant’s case.
On 7 September 2000 and 16 August 2001 the local court delivered the judgments in the case. On 4 October 2000 and 15 November 2001, respectively, the Zhytomyr Regional Court of Appeal (“the Court of Appeal”) quashed those judgments and remitted the case for fresh examination.
On 26 June 2003 the local court allowed the applicant’s claim in full.
On 17 August 2004 the Court of Appeal amended the above judgment, allowed the claim in part and allocated to the applicant 21/100 of the house.
On 16 September 2004 the applicant lodged the appeal in cassation against the judgment of 17 August 2004. On 24 March 2007 the Supreme Court sent the applicant’s appeal in cassation to the Vinnytsya Regional Court of Appeal, which on 26 April 2007, acting as a court of cassation, rejected it as unsubstantiated.
According to the Government, in the course of the proceedings the applicant specified her claim on one occasion. Eleven hearings were adjourned due to the applicant’s, her representative’s or both parties’ failure to appear or following their requests. This resulted in several delays of the overall duration of more than six months. The applicant disagreed stating that she had not missed any hearing without a valid reason. Fourteen further hearings were adjourned following the respondent’s requests, his failure to appear, due to the need to collect additional evidence, absence of a judge or for unspecified reasons. In order to establish the value of the impugned house, six expert examinations were ordered (three of them upon the applicant’s request) and lasted in total for about one year and five months.
COMPLAINTS
Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained about the length of the proceedings in her case. She also complained under Article 6 § 1 of the Convention about their unfavourable outcome.
THE LAW
1. Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained about the length of the proceedings. The Court considers that this complaint falls to be examined solely under Article 6 § 1, which provides, 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...”
The Government disagreed that there had been a violation of the above provision stating that the applicant, who had fully enjoyed her procedural rights, had contributed to the overall duration of the proceedings. They admitted that the examination of the applicant’s appeal in cassation had been somewhat delayed because of a backlog in the Supreme Court. However, that backlog had been of temporary nature and had been overcome with the legislative measures introduced in February 2007.
The Court notes that the proceedings began on 31 August 2000 and ended on 27 April 2007. From 10 to 29 May 2001 and from 10 May to 5 November 2002 no proceedings were formally pending. The proceedings therefore lasted for six years and twenty seven days before three judicial instances.
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).
The Court considers that the subject matter of the litigation cannot be considered complex, even though the case was somewhat complicated by the need to conduct several expert examinations. It further considers that although the proceedings were of certain importance for the applicant, what was at stake for her did not call for a particularly expeditious decision in the case. As to the conduct of the relevant authorities and the applicant, the Court notes that, although certain delays could be attributed to the domestic courts (fourteen adjournments of the hearings and the period during which the case was pending before the Supreme Court), the applicant also contributed to the overall duration of the proceedings. In particular, eleven hearings were adjourned due to the applicant’s, her representative’s or both parties’ failure to appear or following their requests. Furthermore, the applicant specified her claim on one occasion, requested the appointment of three expert examinations and lodged her appeal in cassation against the judgment of 17 August 2004 on the last day of a one-month procedural time-limit. In this context the Court recalls that although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).
In conclusion, regard being had to all the circumstances of the case and in particular to the responsibility of the applicant for part of the delays, the Court finds that the duration of the proceedings cannot be considered unreasonable. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The Court has examined the applicant’s remaining complaint. Having regard to all the material in its possession, it finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsBoštjan M. Zupančič Deputy Registrar President
Full & Egal Universal Law Academy