FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20411/05 by Valeriy Aleksandrovich MELANICH and Valentina Ivanovna MELANICH against Ukraine

The European Court of Human Rights ( Fifth Section), sitting on 16 March 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , judges, Mykhaylo Buromenskiy , ad hoc judge,

and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 23 May 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated , decides as follows:

THE FACTS

The applicants, Mr Valeriy Aleksandrovich Melanich (“the first applicant”) and Mrs Valentina Ivanovna Melanich (“the second applicant”) , are Ukrainian nationals who were born in 1942 and 1944 respectively and live in K yi v. The respondent Government are represented by their Agent, Mr Y. Zaytsev.

1. Proceedings concerning co mpensation for pecuniary damage

In September 2004 the applicants ’ neighbour, Mrs P., started reconstruction work on her apartment. The work was completed on an unspecified date in 2005.

On 5 October 2005 the applicants instituted proceedings in the Svyatoshynskyy District Court of Kyiv ( “ the District Court ” ) against Mrs P. claiming compensation for pecuniary damage. In particular, the applicants alleged that the work had caused partial peeling of the parquet floor in the apartment and damage to tiles in the bathroom.

On 31 October 2005 the District Court, following a request by the applicants, ordered a forensic building report to be prepared by the Kyiv Institute for Forensic Examinations (“the I nstitute”). The court ruled that the fee for the examination should be paid by the applicants.

By a letter of 22 December 2005 the director of the I nstitute informed the District Court that if the fee was not paid within one month the examination would be cancelled. Since the court failed to inform the applicants about the above letter, on 26 January 2006 the director of the I nstitute sent the case file back to the court without examining the request .

On 20 February 2006 the District Court again ordered a forensic building report to be prepared by the I nstitute. The court suspended the proceedings pending its conclusions .

The report reached the court on 20 December 2007.

On 15 January 2008 the court resumed the proceedings.

In the period from 15 January to 9 October 2008 the court scheduled some eleven hearings. Six of them were adjourned because Mrs P. had failed to appear before the court and one because the judge was involved in other proceedings. One hearing was adjourned following an application by the first applicant. The District Court sent several requests to the local tax office , the Minister of the Interior and other institutions in order to ascertain Mrs P. ’ s whereabouts.

On 7 October 2008 the applicants slightly amended their claims.

On 9 October 2008 the District Court dismissed the applicants ’ claims as unsubstantiated.

On 4 December 2008 the Kyiv City Court of Appeal upheld th at judgment.

The applicants appealed in cassation. On 23 January 2009 the Supreme Court declined to consider the applicants ’ appeal in cassation because the applicants had failed to comply with procedural formalities. The court gave the applicants a time-limit for rectify ing the shortcomings. On an unspecified date the applicants rectified the shortcomings and re-submitted the appeal in cassation.

On 2 March 2009 the Supreme Court refused the applicants ’ request for leave to appeal in cassation as unsubstantiated.

2. Proceedings concerning compensation for non-pecuniary damage

In August 2005 the applicants instituted proceedings in the District Court against Mrs P. , seeking compensation for non-pecuniary damage allegedly caused by noise and vibration resulting from the reconstruction work.

On 20 October 2005 the court ruled in part for the applicants , awarding 1,008.50 Ukrainian hryvn i as (UAH) [1] to the first applicant and UAH 2,500 [2] to the second applicant. The applicants received the sums on 2 February and 10 July 2007 respectively.

3. Proceedings instituted by the Municipal Enterprise Responsible for Maintenance of Housing Facilities

On an unspecified date the Municipal Enterprise Responsible for Maintenance of Housing Facilities instituted proceedings against Mrs P. , requesting the court to order her to undo the reconstruction work that she had carried out in her apartment.

On 10 November 2006 the District Court allowed this claim. The judgment remains unenforced.

4. Criminal proceedings

On 21 December 1987 the Kyiv Military Garrison Court acquitted Mr Z. of inflicting bodily injuries on the second applicant, holding that there was no corpus delicti .

On 5 February 1988 the Kyiv Military District Court quashed that decision and remitted the case to the Garrison Military Tribunal, which, on 29 April 1988, acquitted Mr Z.

On 8 July 1988 the Kyiv Military District Court upheld that judgment, which therefore became final.

COMPLAINTS

The applicants complained of the length, outcome and unfairness of the proceedings concerning pecuniary damage. They further complained of the outcome and the unfairness of the proceedings concerning compensation for non-pecuniary damage and of the criminal proceedings. They also complained of the lengthy non-enforcement of the judgment of 20 October 2005 and about the non-enforcement of the judgment of 10 November 2006 . The applicants invoked Articles 2, 3, 8, 10, 13, 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicants complained of the excessive length of the proceedings concerning compensation for pecuniary damage. The Court will examine their complaint under Article 6 § 1 of the Convention which reads as follows:

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

The Government contested the applicants ’ submissions, stating that there had been no significant periods of inactivity attributable to the State. They maintained that the case had been complex and that the judicial authorities had acted with due diligence. According to the Government, the applicants had been responsible for several delays, in particular, by making requests for an expert examination, for additional documents, for the adjournment of a hearing, and by appealing against the judgment to the higher courts. The Government further submitted that Mrs P. had been responsible for several delays since she failed to appear before the court on several occasions.

The applicants disagreed. In particular, they stated that the delays in the proceedings caused by the lengthy forensic examination should be attributed to the Government. With respect to Mrs P. ’ s failure to appear before the court, they alleged that the court could have examined the claim in Mrs P. ’ s absence.

The proceedings complained of began on 5 October 2005 and ended on 2 March 2009. Therefore, they lasted for three years and almost five months at three levels of jurisdiction.

The Court reiterates that the “reasonable” length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant s and that of the competent authorities and what was at stake for the applicant s in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII).

The Court considers that the present case did not involve legal or factual complexity.

The Court finds that the proceedings at issue were of a certain importance to the applicants. However, given that the work was completed in 2005 and that the damage allegedly caused to their apartment was relatively minor, the proceedings at issue were not such as to require particular expedition.

As regards the conduct of the judicial authorities, the Court finds that a number of delays can be attributed to the Government. In this connection, the Court notes the prolonged period of procedural inactivity from 20 February 2006 to 15 January 2008 and the failure of the District Court to inform the applicants about the letter from the Institute . As to the failure of Mrs P. to appear before the domestic court, the Court notes that the District Court took certain steps to ensure the defendant ’ s presence at the court (see, conversely, Golovko v. Ukraine , no. 39161/02, § 62, 1 February 2007). Even assuming that the Government can be held responsible for the above-mentioned delays, the Court observes that the domestic courts hearing the case did attempt to streamline the proceedings, since the hearings in the period prior to 20 February 2006 and after 15 January 2008 were scheduled regularly. The Court also notes that the proceedings before the court of appeal and the Supreme Court were completed within five months of the judgment of the first-instance court.

As regards the conduct of the applicant s , t he Cour t notes that they contributed to the overall length of the proceedings by making requests for an expert examination, additional documents, for the adjourn ment of the hearing, and by amending their claims and appealing against the judgment to the higher courts. The Court notes 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). The Court also notes that the applicants failed to comply with the procedural requirements when lodging their appeal in cassation.

The Court reiterates that a delay at some stage may be acceptable if the overall duration of the proceedings cannot be deemed excessive (see, for example, Pretto and Others v. Italy , 8 December 1983, Series A no. 71, p. 16, § 37). The Court considers that in the present case, although some of the above-mentioned delays could possibly have been avoided, they are not such as to warrant the conclusion that there has been a violation, given the total duration of the proceedings, which was three years and five months.

In view of the above , the Court concludes that the length of proceedings in the instant case did not exceed a reasonable time within the meaning of Article 6 § 1 of the Convention .

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The Court has examined the remainder of the applicants ’ complaints. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President

[1] . About 167 euros (EUR).

[2] . About EUR 414.