European Court of Human Rights

 

FIFTH SECTION

CASE OF ZABARA v. UKRAINE

(Application no. 26007/17)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

7 November 2019

 

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

In the case of Zabara v. Ukraine,

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

          Síofra O’Leary, President,
          Ganna Yudkivska,
          Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 15 October 2019,

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

PROCEDURE

1.  The case originated in an application (no. 26007/17) 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 Myroslava Zabara (“the applicant”), on 29 March 2017.

2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.

3.  On 22 May 2018 the Government were given notice of the application.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1988 and lives in Kozelne, Sumy Region.

5.  On 13 September 2008 the applicant married I. The couple lived at I.’s residence in the village of Murafa, Kharkiv Region.

6.  In 2009 and 2010 the applicant gave birth to two girls.

7.  Relations between the applicant and I. deteriorated and in 2012 they decided to separate. In July 2012 the applicant moved to live with her parents in another village. I. prevented the applicant from taking the children with her.

8.  In October 2012 I. initiated court proceedings for divorce, requesting that the court rule that the children should live with him. The applicant lodged a counterclaim, arguing that the children should live with her.

9.  On 19 February 2013, the Krasnokutskyy District Court of the Kharkiv Region (“the first-instance court”), allowed I.’s request and ordered a forensic psychiatric examination of the applicant. The experts produced their report on 1 April 2013.

10.  On 23 May 2013 the first-instance court dissolved the marriage and determined that the children should live with I. Following an appeal by the applicant, on 17 September 2013 the Kharkiv Regional Court of Appeal upheld that judgment. Following an appeal on points of law by the applicant, on 15 January 2014 the Higher Specialised Court on Civil and Criminal Matters quashed those decisions in so far as they concerned the determination of the children’s place of residence and remitted the case to the first-instance court for fresh consideration of that issue in view of the fact that the case file contained contradictory evidence.

11.  On 24 March 2014 the first-instance court ordered, at the applicant’s request, a second forensic psychiatric examination of her. The experts produced their report on 26 November 2014.

12.  On 29 March 2016 the first-instance court ordered, at I.’s request, a further forensic psychological examination of the applicant. The experts produced their report on 23 December 2016.

13.  On 31 January 2017 the first-instance court ruled that the children should live with I. The applicant appealed. On 22 June 2017 the Kharkiv Regional Court of Appeal upheld that judgment. The applicant lodged an appeal on points of law. On 19 June 2018 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the decisions of the lower courts.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION

14.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement and that she had been afforded no effective remedy in this connection. She relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:

Article 6 § 1

 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

15.  The Government contested that argument.

16.  The period to be taken into consideration began in October 2012 and ended in June 2018. It thus lasted more than five years and seven months over three levels of jurisdiction.

A.    Admissibility

17.  The Court notes that these complaints are not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.

B.     Merits

18.  The Court reiterates that the reasonableness of the length of a set of proceedings must be assessed under Article 6 § 1 of the Convention in the light of the circumstances of the case in question 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 furthermore reiterates that child custody cases must be dealt with speedily (see Laino v. Italy [GC], no. 33158/96, § 22, ECHR 1999‑I and Niederböster v. Germany, no. 39547/98, § 39, ECHR 2003‑IV), all the more so where the passage of time may have irreversible consequences for the parent-child relationship (see Tsikakis v. Germany, no. 1521/06, §§ 64 and 68, 10 February 2011).

19.  As to the present case, the Court does not consider that the complexity of the proceedings could explain their length, which exceeded five years and seven months. It also notes that the applicant took no steps that could have significantly contributed to a delay in the proceedings.

20.  As to the conduct of the authorities dealing with the case, the Court considers that, having regard to what was at stake for the applicant (her right to determine the place of residence of her minor children), the domestic authorities failed to act with the special diligence required by Article 6 of the Convention in such cases.

21.  Having examined all the material submitted to it and with 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.

22.  There has accordingly been a breach of Article 6 § 1 of the Convention.

23.  The Court furthermore finds that the applicant did not have at her disposal an effective remedy in respect of the above complaint under Article 6 § 1 of the Convention (see Vashchenko v. Ukraine, no. 26864/03, § 59, 26 June 2008).

24.  There has accordingly been a violation of Article 13 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

25.  The applicant complained of a violation of his right to respect for his family life resulting from the length of the proceedings complained of. She relied on Article 8 of the Convention.

26.  The Government contested that argument.

27.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

28.  Having regard to the finding relating to Article 6 § 1 (see paragraph 22 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 8 (see, among other authorities, Laino, cited above, §§ 24 and 25, ECHR 1999-I, and Adam v. Germany, no. 44036/02, §§ 79 and 80, 4 December 2008).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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

30.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.

31.  The Government contested that claim.

32.  The Court considers that the applicant must have sustained non‑pecuniary damage on account of the excessive length of the domestic proceedings. Having particular regard to what was at stake for the applicant, the Court, ruling on an equitable basis, awards her EUR 7,500 under that head.

B.     Costs and expenses

33.  The applicant also claimed EUR 3,600 for the costs and expenses incurred before the Court. This claim consisted of the fees for legal services provided by Mr Oleg Levutskyy and Mr Vitaliy Khekalo.

34.  The Government contested that claim.

35.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award in respect of each of the two representatives the sum of EUR 500 covering costs for the proceedings before the Court. At the request of the applicant, the amounts awarded under this head should be paid directly into the bank accounts of Mr Oleg Levutskyy and Mr Vitaliy Khekalo (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

C.    Default interest

36.  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.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds that there has been a violation of Article 13 of the Convention;

4.      Holds that there is no need to examine the complaint under Article 8 of the Convention;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)      EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of Mr Oleg Levutskyy;

(iii)    EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, this amount to be paid into the bank account of Mr Vitaliy Khekalo;

(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;

6.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 November 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                      Síofra O’Leary
Deputy Registrar                                                                       President