CASE OF SURDINA v. UKRAINE
(Application no. 5547/07)
20 December 2011
This judgment is final but it may be subject to editorial revision.
In the case of Surdina v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mark Villiger, President,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 29 November 2011,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 5547/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Israeli national, Ms Viktoriya Vitaliyivna Surdina (“the applicant”), on 10 January 2007.
2. The applicant was represented by Mr I. Y. Fomin, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
3. On 10 September 2010 the Court 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.
4. The applicant was born in 1966 and lives in Tel-Aviv.
5. On 19 October 1998 Mr S. instituted proceedings in the Kirovskyy District Court of Dnipropetrovsk against the applicant and the company V. seeking division of inheritance.
6. On 20 October 1998 the applicant instituted proceedings in the Babushkinskyy District Court of Dnipropetrovsk seeking endorsement of her right to the inheritance.
7. On 26 February 1999 the applicant lodged with the Kirovskyy District Court a counterclaim against Mr S.
8. On 21 August 1999 the Babushkinskiy Court transferred the applicant’s case to the Kirovskyy Court.
9. On 25 October 1999 the Kirovskyy Court joined the claims lodged on 19 and 20 October 1998.
10. On 28 September 2000 the court rejected the request of Mr S. to order the attachment of the disputed property. On 30 October 2000 the Dnipropetrovsk Regional Court quashed that decision and remitted the matter to the first instance court for fresh consideration.
11. On 12 December 2000 the court refused to order the attachment. That decision was not appealed against.
12. On 2 June 2004 the applicant requested the court to order the attachment of the disputed property.
13. On 25 January 2005 the court rejected that request.
14. On 18 April 2005 the Dnipropetrovsk Regional Court of Appeal quashed that decision and remitted the matter to the first instance court for fresh consideration, the outcome of which is unknown.
15. On 25 November 2009 the court endorsed the friendly settlement concluded by the parties.
16. Fifty-nine hearings were scheduled in the applicant’s case. According to the Government, the applicant was responsible for the adjournment of twenty-one hearings, while other parties in the case were responsible for further thirty-one adjournments.
I. COMPLAINTS CONCERNING THE LENGTH OF PROCEEDINGS AND LACK OF DOMESTIC REMEDIES IN THAT RESPECT
17. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads, 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...”
18. She also complained that there was no effective remedy for her complaint about the length of the proceedings. The Court considers that this complaint falls to be examined under Article 13 of the Convention which reads as follows:
“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.”
19. As regards the complaint under Article 6 § 1 of the Convention, the Government submitted that the case was not complex and there were no delays attributable to the Government, while the protraction of the proceedings was due to the number of the parties to the case, the volume of the materials to be examined by the court and the conduct of the parties who had failed to appear and lodged procedural requests. The Government further contended that there had been no violation of Article 13 of the Convention either. The Government also submitted that the applicant had failed to institute disciplinary proceedings against the judges dealing with her case for the alleged violation of the procedural law.
20. The Court notes that the the proceedings in question began on 19 October 1998 and ended on 25 November 2009. They thus lasted for eleven years and one month before the first instance court.
21. The Court notes that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. Article 6 § 1 of the Convention
22. 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).
23. The Court considers that, although the applicant contributed to the overall length of the proceedings by failing to appear before the court on several occasions and lodging procedural requests, the main responsibility for the protracted length of the proceedings rests with the domestic courts. In this context, the Court reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006-V). Turning to the circumstances of the present case, the Court notes that there is nothing to suggest that the court could not have considered the case in the parties’ absence (see Golovko v. Ukraine, no. 39161/02, § 59, 1 February 2007). On the whole, there is no acceptable justification for such a lengthy period during which the dispute, which did not involve complicated factual or legal issues, and was eventually settled by the parties, remained pending before the court of a single judicial level
24. 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).
25. 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.
26. There has accordingly been a breach of Article 6 § 1.
2. Article 13 of the Convention
27. The Court has frequently found violations of Article 13 of the Convention, stating that the current Ukrainian legislation does not provide a remedy for complaints concerning the length of proceedings (see Efimenko v. Ukraine, no. 55870/00, 18 July 2006). In the present case the Court finds no reason to depart from that case-law.
28. There has accordingly also been a breach of Article 13.
II. OTHER COMPLAINTS
29. The applicant complained under Article 1 of Protocol No. 1 that because of the lengthy consideration of her case she could not use her property. She further complained that the court decision to attach the disputed property had been cancelled.
30. Having carefully considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
31. 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
32. 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.”
33. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.
34. The Government contested that claim.
35. The Court, ruling on an equitable basis, awards the applicant EUR 4,500 in respect of non-pecuniary damage.
B. Costs and expenses
36. The applicant did not submit any claims under that head. Therefore, the Court makes no award.
C. Default interest
37. 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 under Article 6 § 1 of the Convention concerning the excessive length of the proceedings and under Article 13 of the Convention about the lack of domestic remedies in that respect admissible and the remainder of the application inadmissible;
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;
(a) that the respondent State is to pay the applicant, within three months, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency 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 amount 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger Deputy Registrar President
SURDINA v. UKRAINE JUDGMENT
SURDINA v. UKRAINE JUDGMENT