FIFTH SECTION

CASE OF SLYADNYEVA v. UKRAINE

(Application no. 38711/06)

JUDGMENT

STRASBOURG

26 July 2012

This judgment is final. It may be subject to editorial revision.

In the case of Slyadnyeva v. Ukraine ,

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

Mark Villiger , President, Ganna Yudkivska , André Potocki , judges, and Stephen Phillips , Deputy Section Registrar ,

Having deliberated in private on 3 July 2012 ,

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

PROCEDURE

1 . The case originated in an application (no. 38711/06) 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 Oleksandra Ivanivna Slyadnyeva (“the applicant”), on 15 September 2006 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska , of the Ministry of Justice .

3 . On 8 November 2010 the application was communicated to the Government .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1946 and lives in Komsomolske .

A. F irst set of proceedings

5 . On 16 February 2001 the applicant and six other persons , all members of the collective enterprise Z. , lodged a claim with the Zmiyiv Town Court (“the Zmiyiv Court ”) against this enterprise and its director seeking the annulment of decisions on the Z. ’ s re-organisation . The applicant had worked in this enterprise for about thirty years.

6 . On 2 November 2001 the Zmiyiv Court decided to leave the claim without examination .

7 . On 11 January 2002 the Kharkiv Regional Court of Appeal quashed that ruling and remitted the case to the first-instance court for an examination on merits.

8 . Meanwhile the enterprise Z. was liquidated, a nd the liquidator became a party to the proceeding s .

9 . As a result, on 22 October 2004 the Zmiyiv Court re started i t s examination of the case .

10 . On 7 February 2007 it found against the claimants.

11 . In the course of the proceeding s the Zmiyiv Court adjourned hearings on twelve occasions in allowing requests of the claimants , who needed additional time for amending their claims , or given their failure to appear . There were also thirteen adjournments requested by the defendant enterprise or caused by the absence of its representative. On one or two occasions hearings were adjourned because the judge was busy or following procedural measures ordered by the court .

12 . On 14 March 2007 the Kharkiv Regional Court of Appeal found that the case fell under the jurisdiction of commercial courts and sent it for examination to the Kha rkiv Commercial Court of Appeal , which on 5 July 2007 upheld the judgment of the Zmiyiv Court .

13 . On 26 December 2007 the Higher Commercial Court found that the dispute was to be examined by the courts of general jurisdiction, quashed the ruling of 5 July 2007 and remitted the case back to the Kharkiv Regional Court of Appeal.

14 . On 1 April 2008 the Kharkiv Regional Court of Appeal discontinued the proceedings in part concerning the claims against the enterprise Z., as it had been liquidated by that time , and rejected the remainder of the claims as unsubstantiated.

15 . On 17 October 2008 the Supreme Court upheld th at ruling.

B. Second set of proceedings

16 . On 18 December 2002 the applicant , as well as the other claimants (see paragraph 5 above) , lodged an additional claim against the enterprise Z. for recovery of a share .

17 . The claimants supplemented and specified their initial claims on a number of occasions.

18 . On 13 December 2005 the Zmiyiv Court stayed the examination of the case pending the outcome in the first set of proceedings.

19 . On 8 February 2006 the Kharkiv Regional Court of Appeal quashed the above ruling , and the first-instance court resumed the proceedings.

20 . On 9 June 2006 the Zmiyiv Court allowed the applicant ’ s request for an expert assessment of the value of a share in the enterprise Z., which it entrusted to the Kharkiv Research Institute for Forensic Expert Examinations.

21 . In January 2007 the aforementioned expert institution informed the court that it did not have the required expertise capacities . The proceedings were then resumed, without the evaluation in question having been undertaken.

22 . On 19 February 2007 the Zmiyiv Court found against the claimants .

23 . O n 30 July 2007 by the Kharkiv Commercial Court of Appeal upheld that judgment .

24 . On 26 December 2007 the Higher Commercial Court found that the case was to be examined by courts of general jurisdiction, quashed the ruling of 30 July 2007 and sent the case for examination to the Kharkiv Regional Court of Appeal.

25 . On 28 May 2008 the Kharkiv Regional Court of Appeal discontinued the proceedings in the part concerning the claims against the enterprise Z. due to it s liquidation and upheld the judgment of 19 February 2007 in the remaining part.

26 . On 12 December 2008 the Supreme Court upheld that ruling.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF PROCEEDINGS

27 . The applicant complained that the length of both sets of proceedings had been incompatible with the “reasonable time” r equirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

28 . The Gov ernment contested that argument stating that , even though the case was not comp lex, the overall length of the proceedings had been reasonable having regard to the considerable number of the parties involved and their conduct .

A. Admissibility

29 . The Court notes that this 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

30 . 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).

31 . T he present case concerns two separate but inte rre lated sets of proceedings involving the same claimants and the same defendant enterprise in a property dispute . The first set began o n 16 February 2001 and ended on 17 October 2008 , having thus lasted for around seven years and eight months. As to the second set, it began on 18 December 2002 and ended on 12 December 2008, having lasted for six years . Both sets of proceedings took place before the courts of three levels of jurisdiction .

32 . The Court does not discern any particular complexity i n the se proceedings which were undoubtedly important for the applicant .

33 . As regards the applicant ’ s conduct in both sets of the proceedings, the Court notes that she, as well as the other claimants, caused some delays by supplementing their claims and submitting additional procedural requests on a number of occasions. Furthermore, as pointed out by the Government, the number of the claimants itself (seven) was a factor contributing to the duration of the proceedings.

34 . The Court however considers that the number and conduct of the claimants alone cannot justify the overall length of the proceedings. The Court reiterates that it is the role of the domestic courts to manage the proceedings before them so that they are expeditious and effective (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183 , ECHR 2006 ‑ V ; Pilipey v. Ukraine , no. 9025/03, § 31, 18 June 2009 ; Gutka v. Ukraine , no. 45846/05 , §§ 27-28 , 8 April 2010 ).

35 . It further notes that both sets of the proceedings were substantially protracted in the course of the examination of the case by the first-instance court. In particular, it took the Zmiyiv Court about six years to decide on the applicant ’ s claim in the first set of proceedings and four years and two months in the second set .

36 . In so far as the first set is concerned, it is noteworthy that about three years and eight months after the proceedings had been initiated, the first-instance court had to restart the examination of the case because of the defendant enterprise ’ s liquidation. The Court considers this delay to have been caused by a factual development not to be attributable to any of the parties. At the same time, it notes that it took the first-instance court another three years to adjudicate on the case. Furthermore, the Court notes a delay of about one year, during which the appellate court declined the jurisdiction over the case.

37 . As to the second set of the proceedings, the Court notes, in particular, the following delays attributable to the authorities: an unsuccessful attempt of the Zmiyiv Court to stay the proceedings (three months); entrustment of a f orensic expert examination to an inappropriate institution (six months); and the reconsideration of the jurisdiction over the case before the appellate court (ten months).

38 . In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the length of the proceedings in the present case , which appears excessive in respect of both sets .

39 . 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).

40 . 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

41 . La stly, the applicant complained under Article 6 § 1 of the Convention about the unfairness of the proceedings and under Article 1 of Protocol No. 1 thereto about the outcome alleging that her property right s had not been recognized and that she had therefore lost benefits.

42 . In the light of the materials in its possession, the Court finds that the applicant ’ s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

43 . It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

II I . APPLICATION OF ARTICLE 41 OF THE CONVENTION

44 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

45 . The applicant claimed 89,943.44 (Ukrainian hryvnias) UA Н [1] in respect of pecuniary and 5,000 euros (EUR) in respect of non-pecuniary damage.

46 . The Government co ntested these claims.

47 . 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 considers that the applicant must have sustained non ‑ pecuniary damage. Ruling on an equitable basis, it awards her EUR 1 , 1 00 under that head.

B. Costs and expenses

48 . The applicant also claimed 470,52 UAH [2] for the costs and expenses incurred before the domestic courts and those incurred before the Court.

49 . The Government co ntested the claim.

50 . Regard being had to the documents in its possession and to its case ‑ law , the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 15 for the proceedings before the Court.

C. Default interest

51 . 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 applicant ’ s complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings 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

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

( i ) EUR 1 , 1 00 ( one thousand one hundred euros ) , plus any tax that may be chargeable, in respect of non-pecuniary damage ;

(ii) EUR 15 ( fifteen euros ), plus any tax that may be chargeable to the applicant , in respect of costs and expenses;

(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;

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

Done in English, and notified in writing on 26 July 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Mark Villiger Deputy Registrar President

[1] . Around EUR 7,557 .

[2] . Around EUR 40 .