CASE OF SMIRNOVA v. UKRAINE
Violation of Art. 6-1;No separate issue under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
4. The applicant was born in 1937 and lives in Kyiv. 5. In May 1997 the applicant instituted proceedings in the Bagaleysky District Court of Dneprodzerzhynsk (hereafter “the District Court”) against Mr M. (her brother) for the division of their late parents’ estate. 6. The first court hearing was held on 11 June 1997, when the defendant filed a counterclaim. The next sitting before the District Court was scheduled for 25 June 1997 but was adjourned at the defendant’s request. 7. According to the Government, the hearing fixed for 22 July 1997 was cancelled on account of the applicant’s failure to appear. The applicant contested this submission, stating that she was present in court and that the hearing took place as scheduled. 8. On 9 September 1997 the applicant lodged a successful request for the removal of the judge. 9. At a hearing on 27 November 1997, the applicant obtained an adjournment. 10. On 18 December 1997 the defendant unsuccessfully challenged the participation of the trial judge and obtained an adjournment to summon witnesses. The adjournment was extended until 19 February 1998 at the applicant’s request. 11. During February 1998 the court held three hearings and questioned a number of witnesses. 12. The Government stated that on 19 March 1998 the applicant sought, and was granted, a two-month adjournment. The applicant did not deny this but, in her observations, she mentioned two hearings that were held during this period. 13. According to the Government, on 20 May 1998 the court, at the defendant’s request, ordered an assessment of the estate by a building expert and adjourned the hearing until 21 July 1998. The applicant enumerated, however, six hearings, allegedly fixed for this period, four of which were cancelled due to the defendant’s failure to appear. 14. On 21 July 1998 the defendant unsuccessfully challenged the trial judge and the expert. 15. On 21 August 1998 the hearing was adjourned until October 1998 due to the defendant’s failure to appear. 16. On 26 October 1998 the hearing was cancelled, according to the Government, due to the failure of the applicant’s lawyer to appear; according to the applicant, it was because the defendant did not show up. 17. On 4 November 1998, the court, following the defendant’s application, ordered an additional expert examination of the disputed property. 18. The applicant stated that on 21 December 1998 and 27 January 1999 the hearings were adjourned due to the defendant’s absence in court. The Government did not mention any hearings having been fixed during this period. 19. On 15 January 1999 the expert institution informed the court that the requested examination was impossible due to a lack of relevant documentation and the deficiency of the questions posed to them. The institution requested that further documents be provided and the questions reformulated. 20. On 3 February 1999 the court reformulated its questions to the experts, ordered the defendant to pay the costs of the expert opinion and made an interim injunction to preserve the status quo. 21. On 20 August 1999 the expert opinion was delivered. 22. On 1 September 1999 the hearing was cancelled due to the applicant’s failure to appear. 23. On 9 November 1999 the court adjourned the hearing on its own motion. 24. Between 11 November 1999 and 5 January 2000, the hearings were adjourned on four occasions due to the defendant’s failure to appear. On 16 November 1999 the court issued a warrant to compel the defendant’s presence. On 26 November 1999 a local constable informed the court that the warrant could not be executed as Mr M. was absent from his place of residence. 25. From 5 January to 5 June 2000 the court adjourned hearings on five occasions due to the applicant’s absence in court. 26. On 5 June 2000 the defendant unsuccessfully challenged the judge. 27. Between 13 June and 18 October 2000 six hearings were cancelled due to the failure of the applicant (on one occasion), the defendant (on two occasion) and both parties (on three occasions) to appear in court. 28. From 18 October to 1 December 2000 the court held five hearings. 29. On 1 December 2000 the court allowed the applicant’s claim, awarding her 77/100 of the disputed estate. In its judgment the court referred to the testimonies of eighteen witnesses and a wide range of documentary and expert evidence. 30. The defendant appealed. On 12 February 2001 the Dnipropetrovsky Regional Court quashed the judgment of 1 December 2000 and remitted the case for fresh consideration. 31. On 10 April 2001 the District Court remitted the case for trial. 32. On 26 April and 28 May 2001 the hearings were adjourned on account of the applicant’s failure to appear. 33. At hearings on 15 August 2001 and 11 September 2001, the applicant sought and obtained adjournments to amend her claims. 34. On 18 September 2001 the applicant filed an appeal under the new cassation procedure against the decision of 12 February 2001. The applicant was refused leave to appeal and was given time to rectify the procedural defects of that cassation appeal. 35. On 17 October 2001 the applicant lodged an amended claim and the defendant applied for an adjournment to familiarise himself with it. 36. On 18 October 2001 the hearing was adjourned at the applicant’s request. 37. Between 8 November 2001 and 4 February 2002, the hearings were cancelled on four occasions due to the applicant’s failure to appear. 38. On 4 February 2002 the judge granted an adjournment at the applicant’s request pending the examination of her cassation appeal. 39. On 15 March 2002 the Supreme Court rejected the applicant’s appeal in cassation. 40. On 10 May 2002 the District Court resumed the consideration of the case; however it had to adjourn the hearing due to the applicant’s absence. From then onwards until 25 December 2002 the applicant failed to appear for eight sittings. 41. From 31 January to 1 December 2003 the court held five and cancelled three hearings (one hearing was cancelled due to the applicant’s failure to appear, one because the judge was occupied with another case and the last one due to a third person’s illness). 42. Between 1 December 2003 and 2 February 2004 three sittings were adjourned because of the applicant’s failure to appear and her illness. 43. On 3 February 2004 the applicant asked the court to hear the case in her absence. 44. On 10 February 2004 the court heard witnesses. 45. The hearings fixed for 26 February and 9 March 2004 were cancelled due to a third person’s failure to appear. On 25 March 2004 the court decided to hear the case in that person’s absence. The court, at the defendant’s request, ordered a further expert opinion on the disputed property. 46. On 29 April 2004 the District Court delivered a judgment, partly granting the applicant’s claim. However, Mr M.’s share in the estate was increased to 28 %. 47. The defendant appealed against this judgment. The District Court invited the applicant to comment on the appeal. Having received the applicant’s comments, on 16 June 2004 the court referred the case to the Court of Appeal of the Dnipropetrovsk Region. 48. On 7 September 2004 the Court of Appeal quashed the judgment of 29 April 2004 and remitted the case for fresh consideration. 49. The case resumed on 23 October 2004, however the court had to adjourn this hearing as well as the next one due to the applicant’s failure to appear. On 7 December 2004 the applicant asked the court to proceed with the case in her absence. 50. On 10 December 2004 the defendant (apparently unsuccessfully) challenged the participation of all judges of the District Court and requested that the case be remitted to another court. 51. The case is still pending before the District Court. 52. Section V of the Code of Civil Procedure regulates the review of judicial decisions. It envisages the following principal remedies: an appeal which, under Articles 290 and 291, can be brought against judgments and certain interlocutory decisions of the first instance courts; a cassation appeal which, under Article 320, can be lodged with the Supreme Court against judgments and decisions of the first instance courts, which have previously been examined by the appellate courts and the judgments and decisions of the appellate courts; and a review of final judgments and decisions on the grounds of new or extraordinary circumstances. There is no specific provision in the Code providing for remedies against the inactivity on the part of the judiciary in the course of civil proceedings. 53. Article 172 of the Code provides that if the duly summoned defendant repeatedly fails to appear in courtroom the court may, of its own motion, decide to proceed with the case in his/her absence. If the defendant’s repetitive failure to appear had no valid reasons, the court may fine him/her three times the monthly minimum wage (see Sukhovetskyy v. Ukraine (dec.) no. 13716/02, 1 February 2005).