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FIFTH
SECTION
CASE OF OMELYANENKO v. UKRAINE
(Application
no. 36758/08)
JUDGMENT
STRASBOURG
22
September 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Omelyanenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy
Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 36758/08) against Ukraine
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
Ukrainian national, Mr Volodymyr Andriyovych Omelyanenko (“the
applicant”), on 17 July 2008.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice.
- On
25 August 2010 the
President of the Fifth Section decided to give notice of the
application 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
- The
applicant was born in 1951 and lives in Kharkiv.
- On
7 February 1994 he lodged a claim with the Kyivskyy District Court of
Kharkiv (“the District Court”) against two companies and
a local institute, by which he sought to be provided with a flat.
- On
31 March 1995 the above court partly allowed the claim and ordered
the institute to provide the applicant with a flat. On 16 May 1995
the Kharkiv Regional Court upheld that judgment.
- On
20 September 1995, 26 February 1996, 17 November 1999 and 10 December
2001 the District Court delivered additional judgments in the case.
On 17 October 1995, 19 July 1996, 29 September 2000 and 13 March
2002, respectively, the Kharkiv Regional Court and the Kharkiv
Regional Court of Appeal quashed those judgments and remitted the
case for fresh examination.
- On
11 June 2002 the applicant lodged an appeal in cassation against the
ruling of 13 March 2002. On 10 March 2003 the District Court
requested the applicant to lodge it in accordance with the procedural
requirements. Following that, on 3 March 2004 the Supreme Court
upheld the ruling of 13 March 2002.
- On
2 December 2004 the District Court delivered the additional judgment
in the case. On 9 February 2005 and 18 January 2008, respectively,
the Kharkiv Regional Court of Appeal and the Lugansk Regional Court
of Appeal (the latter court acting as a court of cassation) upheld
it.
- In
the course of the proceedings fifteen hearings were adjourned due to
the respondents’ failure to appear, due to the illness or
absence of a judge or for unspecified reasons. One forensic
examination was ordered (between 15 October 1997 and 9 August 1999).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Articles 6 § 1
and 13 of the Convention about the unreasonable length of the
proceedings in his case. The complaint falls to be examined solely
under Article 6 § 1, which provides, insofar 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 contested that argument.
- The
period to be taken into consideration began only 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 18
January 2008. The proceedings thus lasted ten years and four months
before three judicial instances.
A. Admissibility
- The
Court notes that the 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
- 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).
16. The
Court considers that the complexity of the case and the conduct of
the applicant, who somewhat contributed to the length of the
proceedings (see paragraph 8 above), cannot explain their overall
length. On the other hand, the Court finds that the protraction of
the proceedings was mainly caused by several remittals of the case
for fresh examination (see paragraph 7 above), by the lengthy
consideration of the case by the court of cassation (see paragraph 9
above) and by the repeated adjournments of the court hearings (see
paragraph 10 above). It concludes, therefore, that the main
responsibility for the lengthy duration of the proceedings rests with
the State.
- 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; Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; and Moroz
and Others v. Ukraine, no. 36545/02,
§ 62, 21 December 2006).
- 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.
II. REMAINING COMPLAINTS
- The applicant also complained
under Articles 6 § 1 and 13 of the Convention about the
unfavourable outcome of the proceedings.
- Having carefully examined the
applicant’s submissions 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 30,000 Ukrainian hryvnias
(UAH) in respect of pecuniary damage and asked the Court to award him
non-pecuniary damage in accordance with its practice.
- The
Government contested the claim for pecuniary damage and, in respect
of non-pecuniary damage, left the matter to the Court’s
discretion.
- 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, it awards the applicant EUR
3,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 830.21
for the costs and expenses incurred before the domestic courts and
UAH 255
for those incurred before the Court (correspondence and translation
expenses).
- The
Government contested the claim for costs and expenses incurred before
the domestic courts. They further observed that, in respect of the
costs and expenses incurred before the Court, the applicant had
provided receipts to the amount of UAH 222.24.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court rejects the claim for costs and expenses
in the domestic proceedings and considers it reasonable to award the
sum of EUR 20 for the proceedings before the Court.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months EUR 3,200 (three thousand
two hundred euros) in respect of non-pecuniary damage and EUR 20
(twenty euros) in respect of 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 22 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
