DISSENTING OPINION OF JUDGE POWER- FORDE

1. I disagree with the majority ’ s finding of a violation of Article 6 § 1 in this case. This case mainly concerns the length of one of a number of sets of civil proceedings which the applicants instituted before the Ukrainian courts. The proceedings in question relate to a dispute between the first applicant, her son and her former husband concerning an alleged right to reside in an apartment. The known facts would appear to disclose that they had lived together in this apartment for approximately one year (see §§ 6 and 7) prior to the first applicant ’ s divorce from her husband in 1999.

2. The total length was 6 years 3 months over two levels of jurisdiction with the longest ‘ delay ’ occurring at first instance. Although it has been the practice of this Court to find violations in cases of similar duration, it is a ‘ practice ’ which I cannot endorse unless I am satisfied that there is a clear want of diligence on the part of the domestic authorities. The mere ‘ length ’ is not, in itself, determinative of ‘ reasonableness ’ . Each case requires a thorough examination of what, in fact, transpired while the proceedings were pending before the national courts.

3. An international court, removed as it is from the ‘ cut and thrust ’ of contentious litigation, must not lose sight of the practical realities that confront national judges. Parties fail to appear. Additional evidence may need to be directed. Judges get delayed when cases run over their estimated time. Such happenings are not, necessarily, indicative of a system ’ s failure. They are the practical realities of life. That is not to say that I accept that long delays are endemic in every legal system and have to be tolerated. I do not. Justice ought to be administered as promptly and as efficiently as possible. Applicants are entitled to have a trial within reasonable time, not within perfect time. In my view, when one examines what actually occurred in this case, the disposal of proceedings within the given time frame over the various levels of jurisdiction is not so obviously unreasonable as to constitute a breach of a ‘ fundamental ’ right under Article 6 § 1 of the Convention.

4. My assessment differs from that of the majority. I find it difficult to discern any significant period of inactivity attributable to the Ukrainian authorities. It is true that there was no hearing for just over a year (§ 16). However, this was because the Ukrainian authorities were liaising with the Russian authorities to investigate whether the applicants had been resident in Russia . The majority considered that the protraction of proceedings was caused, inter alia , by ‘ the request for information and the questioning of witnesses in Russia ’ . The first applicant had spent most of her life there – both before and after her divorce from Y – and it was thought that the second may have been studying there. It is not this Court ’ s role to ‘ second guess ’ the necessity for the evidence which the domestic court directs. In my view, the national court cannot be criticised for seeking to establish the facts with foreign authorities, since those facts were, in its view, necessary for the determination of whether, through their absence, the applicants had lost their alleged right to reside as tenants in the said property. The fact that one procedural error occurred in that, initially, the Court ’ s requests were not directed through the correct channel is not sufficient, in my view, to form a basis for the Court ’ s finding of a violation of Article 6 § 1.

5. The prolongation of proceedings caused as a result of adjournments within the year 2002 to 2003 cannot be attributable entirely to the State as most of them were necessitated by the non-availability of the parties to these civil proceedings. It seems to me that, thereafter, much of the responsibility for the subsequent delays from 2003 to 2005 rests with the applicants. Repeatedly, they lodged appeals against court decisions which were not, in fact, subject to appeal. These ill-founded appeals still required to be dealt with by the courts before which they were brought. They spanned three levels of jurisdiction and contributed significantly to the overall ‘ length ’ at first instance.

6. Finally, the majority regards the allegation that the first applicant was ‘ homeless ’ as being an important factor which required ‘ promptness ’ before the domestic courts. As the applicant was not claiming a right to live ‘ rent-free ’ in the apartment, it is difficult to see why living on the street became her only other option. Furthermore, she had spent most of her life in Russia and had lived in the apartment for a very short period of time many years prior to her divorce from her husband. She did not make any claim to the apartment as her ‘ home ’ until three to four years after she had left it. In such circumstances, it is difficult to see why the domestic courts should have regarded the apartment in question as the first applicant ’ s ‘ home ’ such as would require particular diligence on their part in expediting the proceedings in issue.

[1] . Around 62,000 euros

[2] . Around 256 euros