FIFTH SECTION

CASE OF TROFIMOVA AND ZYLKOVA v. UKRAINE

(Applications nos. 35909/06 and 50559 /06 )

JUDGMENT

STRASBOURG

15 March 2012

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

In the case of Trofimova and Zylkova 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 21 February 2012,

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

PROCEDURE

1 . The case originated in application s (no s . 35909/06 and 50559/06 ) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian national s , Ms Lyudmila Alekseyevna Trofimova (“ the first applicant”) and Ms Alla Alekseyevna Zylkova (“the second applicant”) , on 25 August and 10 September 2006, respectively .

2 . The appli cants were represented by Mr A. A. Silantyev , a lawyer practising in Pskov , the Russian Federation. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska , of the Ministry of Justice.

3 . The Russian Government, having been informed of their right to intervene in the proceedings as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

4 . On 22 September 2010 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5 . The applicant s , who are sisters , were born , respectively, in 1956 and 1959 and live in Salekhard and Salemal , the Russian Federation .

6 . In August 2001, I . Z . , the applicants ’ sister , instituted proceedings against them challenging a privatisation title issued by the local government to a part of their father ’ s apartment inherited under his will (the first applicant had bequeathed her part of the will to the second applicant, who as a result share d the apartment ’ s ownership with I.Z.) .

7 . According to the Government, the applicants did not attend two of the hearings in the Feodossiyskyy Town Court (“the Feodossiyskyy Court ”), which dealt with the case, thus protracting the proceedings by two months.

8 . On 18 April 2003 the F e odossi y skyy Court ruled in I.Z. ’ s favour. The applicants appealed .

9 . On 10 July 2003 the Feodossiyskyy Court , ruling on the admissibility of the appeal, set 4 August 2003 as a deadline for fixing procedural formalities . On 8 August 2003 t he court ruled to return the appeal to the applicants as they had not rectified the indicated shortcomings .

10 . Between August 2003 and April 2004, the Feodossiyskyy Court reconsidered the admissibility of the applicants ’ appeal several times and refused to admit it for examination on merits as belated .

11 . On 6 April 2 004 the Court of Appeal of the Autonomous Republic of Crimea ( “ the Court of Appeal ”) quashed the last inadmissibility ruling of the Feodossiyskyy Court , stating that it was its own competence to examine that issue.

12 . On 27 April 2004 the Court of Appeal granted an extension for submission of the applicant ’ s appeal against the decision of 18 April 2003 , and admitted it for examination.

13 . On 24 November 2004 the Court of Appeal ruled in the applicants ’ favour .

14 . On 23 December 2004 I.Z. appealed in cassation to the Supreme Court.

15 . On 21 April 2007 the Supreme Court transferred the case to the Zaporizhya Regional Court of Appeal, in compliance with the legislative measures of February 2007 on distribution of its backlog of cassation appeals among appellate courts.

16 . On 9 November 2007 the Zaporizhya Region al Court of Appeal, acting as a court of c assation , upheld the ruling of 24 November 2004.

THE LAW

I. JOINDER OF THE APPLICATIONS

17 . The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

II. COMPLAINTS CONCERNING THE LENGTH OF PROCEEDINGS AND THE LACK OF DOMESTIC REMEDIES IN THAT RESPECT

18 . The applicant s complained that the length of the proceedings had been un reasonable and that there had not been effective domestic remedy in that regard . The y relied on Article s 6 § 1 and 13 of the Convention which read as follows in the relevant parts :

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

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.”

A. Admissibility

19 . The Court notes that th e s e complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Article 6 § 1 of the Convention

20 . The Government contested th e argument of the excessive length of the proceedings, submitting that there had been no delays attributable to the State. According to them, while the case was not complex , the parties, and the applicants in particular, contributed to the length of the proceeding s by introducing additional claims and by failing to attend the hearings. They also submitted that the State had not been responsible for the period from 18 April 2003 until 24 November 2004, as the courts at that time had not dealt with determination of rights and obligations in the sense of Article 6 (see paragraphs 8-13 above) . Lastly , the Government acknowledged that the examination by the courts of cassation had been somewhat protracted due to the high case-load at the Supreme Court, but they pointed out that this problem had been resolved by the legislative measures in February 2007 (see paragraph 15 above).

21 . The applicants disagreed .

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 period to be taken into consideration as to the proceedings in the present case began in August 2001 and ended on 9 November 2007, thus lasting around six years and three months for three levels of jurisdiction.

24 . The Court observes that the major delay s in the proceedings were caused by : firstly, the examination of the admissibility of the applicants ’ appeal for around one year (see paragraph s 8-12 above); and, secondly, the adjudication on the cassation appeal which took place about three years after its submission (see paragraphs 14-16 above).

25 . As regards the lengthy consideration of the admissibility of the appeal , t he Court notes that although th is delay might have been prompted by the fact that the applicants needed more time for case-processing as no n-Ukrainian residents, the responsibility for it may not be put solely on the applicants. Thus, the Court does not lose sight of the fact that the admissibility decision was reconsidered several times (see paragraph s 10-12 above) and finally was given in the applicants ’ favour. Accordingly, those remittals are to be viewed as an indication of deficiencies in the proceedings for which the applicants bear no responsibility (see, mutatis mutandis , Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003).

26 . The Court next observes that, by the time the legislative amendments referred to by the Government were introduced in February 2007, the cassation appeal had been waiting for consideration for more than two years.

27 . In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.

28 . 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).

29 . 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 in respect of the length of the proceedings.

2. Article 13 of the Convention

30 . 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.

31 . There has accordingly also been a breach of Article 13.

II I . OTHER COMPLAINTS

32 . The applicant s complained , relying on Articles 13, 14 and 17 of the Convention, that they had been discriminated against and restricted in their procedural rights on the ground of their Russian nationality. The second applicant further complained, with reference to Article 13 of the Convention and Article 1 of Protocol No. 1 , about the allegedly unfavourable decision of the first-instance court.

33 . Having carefully considered the applicants ’ 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.

34 . 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.

I V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

35 . 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

36 . The first applicant claimed 10,000 euros (EUR) and the second EUR 20,000 in respect of non-pecuniary damage.

37 . The Government co ntested these claims.

38 . The Court does not discern any causal link between the violation found and the non- pecuniary damage alleged; it therefore rejects this claim. On the other hand, t he Court considers that the applicant s must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards each applicant EUR 7 00 under that head.

B. Costs and expenses

39 . The applicant s indicated that some costs and expenses had been incurred but did not submit a specified claim under the Court ’ s procedure.

40 . The Government did not express an opinion on the matter.

41 . The Court considers it reasonable to award the sum of EUR 50 to each applicant under this head.

C. Default interest

42 . 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. Decides to join the applications;

2. Declares the applicants ’ complaints under Articles 6 § 1 and 13 of the Convention concerning the length of proceedings and the lack of effective remedies in that respect admissible and the remainder of the application inadmissible;

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

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

5. Holds

(a) that the respondent State is to pay within three months each applicant EUR 7 00 ( seven hundred euros) in respect of non-pecuniary damage and each applicant EUR 50 (fifty euros ) in respect of costs and expenses ; plus any tax that may be chargeable to the applicants, 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 poin ts;

6. Dismisses the remainder of the applicants ’ claims for just satisfaction.

Done in English, and notified in writing on 15 March 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Mark Villiger Deputy Registrar President