CASE OF MURDUGOVA v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
André Potocki;Karel Jungwiert;Mark Villiger
6. The applicant was born in 1920 and lived in Kyiv, Ukraine, and in Yerevan, Armenia. 7. From 1947 to 1966 the applicant was married to M. Mrs Sardaryan was born during the marriage. The applicant and M. divorced in 1966. On 11 August 1984 they remarried. 8. On 12 January 2007 the applicant died and Mrs Sardaryan inherited her rights and obligations. 9. On 2 April 2007 M. died and Mrs Sardaryan inherited his rights and obligations. 10. On 22 November 1996 M. instituted divorce proceedings in the Moskovskiy District Court of Kyiv against the applicant. 11. On 6 May 1997 M. amended his claims and requested a declaration that the marriage of 1984 was void. Subsequently he modified and withdrew his claims on several occasions. 12. On 24 March 1998 the court declared the marriage void. The applicant appealed. 13. On 29 April 1998 the Kyiv City Court (since 2001 the Kyiv City Court of Appeal) quashed this judgment on the ground that the lower court had failed to examine the initial claims of M. and to establish crucial facts, and remitted the case for fresh consideration. 14. On 26 June 1998 the applicant submitted a counterclaim, seeking a divorce. 15. On 27 July 1998 the Moskovskiy District Court granted the divorce petition in respect of M. and the applicant. M. appealed. 16. On 9 September 1998 the Kyiv City Court quashed this judgment on the lower court’s failure to assess properly the evidence and remitted the case for fresh consideration. 17. On several occasions the Kyiv City Court transferred the case from one trial court to another for further examination: in September 1998 to the Zaliznychniy District Court of Kyiv; in October 1999 to the Starokyivskiy District Court of Kyiv; and, eventually, on 20 January 2000 to the Kharkivskiy District Court of Kyiv (in 2001 this court was reorganised into the Dniprovskiy and Darnytskiy District Courts of Kyiv). 18. On 4 July 2001 the court found for M. and declared the marriage with the applicant void. The applicant appealed. 19. On 4 December 2001 the Kyiv City Court of Appeal quashed this judgment and remitted the case for fresh consideration to the Dniprovskiy District Court of Kyiv. It noted, inter alia, that although the trial court had examined the case in the applicant’s absence, it had failed to take into account her written pleadings, which were important for a fair examination. M. appealed in cassation against this decision but on 7 March 2002 the Supreme Court of Ukraine dismissed his appeal. 20. On 26 April 2002 the Dniprovskiy District Court resumed the proceedings. 21. On 23 May 2003 the court granted divorce to M. and the applicant. The hearing was held in M.’s absence. M. appealed. 22. On 18 November 2003 the Kyiv City Court of Appeal quashed the judgment on the ground that the trial court had failed to examine whether the absence of M. was for good reasons or not and remitted the case for fresh consideration. 23. On 12 December 2003 the Dniprovskiy District Court resumed the proceedings. 24. On 17 March 2005 the court rejected M.’s claim to have the marriage declared void and dismissed the applicant’s claim because she had failed to attend the hearing. 25. On 28 July 2005 and 21 May 2007 respectively, the Kyiv City Court of Appeal and the Donetsk Regional Court of Appeal, acting as a court of cassation, dismissed M.’s appeals. 26. A substantial number of the approximately seventy hearings in this set of proceedings were adjourned following the parties’ requests, referring to their poor state of health or their failure to appear before the court. In her requests to adjourn the hearings the applicant, who, it appears from the available documents, was represented, requested the trial courts either not to hold hearings in her absence or to stay the proceedings till her recovery. The trial courts stayed the proceedings several times pending the parties’ recovery. The courts further warned the parties that they would examine the case in the respective party’s absence; on one occasion the court fined the applicant for non-attendance, but this decision was later quashed upon the applicant’s appeal. 27. According to the applicant, she did not appeal against the judgment of 17 March 2005 but in August 2005 she instituted new and separate divorce proceedings in the Golosiyivsky District Court of Kyiv. On 14 March 2006 the court divorced the applicant and M. 28. In 1986 the applicant’s family was granted tenancy of a publicly owned two-roomed apartment. On 28 November 1991 M., with the applicant’s consent, bought the apartment from the local municipal authority. 29. On 25 November 1996 the applicant instituted proceedings in the Moskovskiy District Court of Kyiv against M., seeking to declare the above sale contract void. 30. On 15 November 1996 the court attached the apartment in question. 31. In March 1997 the applicant amended her claims, claiming ownership of half of the apartment. 32. In April 1997 M. forcibly evicted the applicant from the apartment. The applicant moved to Yerevan, Armenia, and resided there until her death. 33. On 29 May 1997 the Moskovskiy District Court stayed the proceedings pending determination of the divorce proceedings. 34. In the period between 22 October 1999 and January 2000 the case was transferred to the Starokyivskiy and Kharkivskiy District Courts of Kyiv, following the relevant decisions by the Kyiv City Court. 35. On 31 January 2000 the Kharkivskiy District Court of Kyiv, having taken over the case, decided to stay the proceedings pending determination of the divorce proceedings. 36. On 29 August 2002 the Golosiyivskiy District Court of Kyiv (before October 2001 the Moskovskiy District Court of Kyiv) lifted the attachment order on this apartment as “the main dispute had been resolved”. According to the applicant, neither she nor her representative were present at this hearing. She also contended that Judge U., the president of the court, who rendered this ruling, had intervened unlawfully in the proceedings as at that moment they were pending before the Darnytskiy District Court of Kyiv (formerly the Kharkivskiy District Court of Kyiv). The applicant further pointed out that in the ruling of 29 August 2002 Judge U. had referred to a judgment which did not exist. 37. On 20 September 2002 M. made a gift of the apartment to K.N., a third person. On 21 February 2003 the latter sold the apartment to K.R. The applicant alleged that she only became aware of the ruling of 29 August 2002 in April 2003, when the apartment had been already sold. 38. On 3 April 2003 the Darnytskiy District Court (formerly the Kharkivskiy District Court of Kyiv, see paragraph 17 in fine) made an attachment order in respect of the apartment in question. On 21 June 2004 the Kyiv City Court of Appeal amended the order so that it applied to half of the apartment only. According to the applicant, neither she nor her representative was summoned to the last-mentioned hearing. On 21 March 2006 the Supreme Court of Ukraine upheld the ruling of 21 June 2004. 39. On 7 May 2003 the court rejected the applicant’s request to renew her the time-limit for appeal against the decision of 29 August 2002. There is no evidence that the decision of 7 May 2003 has been ever sent to the applicant. According to the applicant, she learned about it on 30 July 2004 at the latest from the letter of the Kyiv City Court of Appeal. There is no evidence that the applicant has ever tried to obtain a copy of the decision of 7 May 2003 and to appeal against it. 40. On 17 February 2004 the Darnytskiy District Court inquired of the Dniprovskiy District Court as to the outcome of the divorce proceedings. 41. On 26 June 2006 the Darnytskiy District Court resumed the proceedings. 42. On 12 September 2006 the applicant submitted an additional claim to declare the gift contract of 20 September 2002 and the sale contract of 21 February 2003 (see paragraph 37 above) void. 43. On 21 September 2006 the case was transferred for examination to the Golosiyivskiy District Court. On 18 January 2007 the Kyiv City Court of Appeal quashed this decision on an appeal by the applicant and remitted the case back to the Darnytskiy District Court. 44. On 16 June 2007, both parties, the applicant and M., having died, the Darnytskiy District Court stayed the proceedings until the identity of the parties’ heirs had been determined. 45. On 10 October 2007 Mrs Sardaryan joined the proceedings as the sole heir to both parties. She also modified the claims, seeking to have the contracts of 20 September 2002 and 21 February 2003 declared void and to have the court recognise that she owned the apartment outright. In this regard she indicated K.N. and K.R. as defendants. 46. On 5 November 2007 the proceedings were resumed. 47. On 26 June 2008 the Darnytskiy District Court found for Mrs Sardaryan. On 28 October 2008 the Kyiv City Court of Appeal upheld this decision. On 15 September 2010 the Supreme Court of Ukraine quashed these decisions and remitted the case for a fresh consideration to the first instance court. The proceedings are apparently still pending.