CASE OF PONOMARENKO v. UKRAINE (European Court of Human Rights) 17030/20

The application concerns the alleged lengthy proceedings before the domestic courts further to the applicant’s request of February 2017 mainly seeking an order that her three children (born in 2004, 2006 and 2011) reside with her in Germany, and the absence of an effective remedy in this respect. The applicant relies on Articles 6, 8 and 13 of the Convention.


FIFTH SECTION
CASE OF PONOMARENKO v. UKRAINE
(Application no. 17030/20)
JUDGMENT
STRASBOURG
22 September 2022

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

In the case of Ponomarenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ivana Jelić, President,
Ganna Yudkivska,
Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 17030/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 March 2020 by a Ukrainian national, Ms Nadiya Leonidivna Ponomarenko, born in 1982 (“the applicant”) and living in Schwerin, Germany, who was represented by Ms V. Petruk, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the parties’ observations;
Having deliberated in private on 7 April 2022,
Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged lengthy proceedings before the domestic courts further to the applicant’s request of February 2017 mainly seeking an order that her three children (born in 2004, 2006 and 2011) reside with her in Germany, and the absence of an effective remedy in this respect. The applicant relies on Articles 6, 8 and 13 of the Convention.

2. In particular, between February 2017 and December 2019 the applicant’s request seeking a determination of the children’s place of residence, maintenance from her former husband (the children’s father) and a temporary permit for the children to travel abroad without their father’s consent was pending before the Vasylkivskyi District Court of Kyiv Region (“the first-instance court”). During that period, the hearings were adjourned and/or postponed eleven times, often because of the non-appearance of the respondent and/or third parties and also because the case was reassigned twice to different judges following the expiry of term of office of two judges previously dealing with it.

3. On 11 December 2019 the first-instance court allowed the applicant’s application only as regards the payment of maintenance. The remainder was dismissed mainly for the reason that two of the children were lawfully residing with their father in Ukraine and there were no grounds for changing their residence, and that, as regards the third child, the parties had agreed that she would reside with the applicant in Germany.

4. On 19 August 2020 the Kyiv Regional Court of Appeal allowed an appeal by the opposing party, quashed the first-instance court’s judgment and dismissed the applicant’s entire application. No further appeal was lodged.

THE COURT’S ASSESSMENT

5. Relying on Articles 6 and 8 of the Convention, the applicant complained that the proceedings had been unreasonably long and that while they had been underway she had been unable to “live and freely communicate” with her children. Relying on Article 13, she complained of the lack of an effective remedy in that regard in Ukraine.

6. The Government argued, in the main, that the length of the domestic proceedings was not unreasonable and that there was no violation of Article 6 or Article 8 on that account. According to them, the proceedings were of a certain complexity and the domestic courts had scheduled hearings regularly. They further argued that Article 13 did not apply in this case.

7. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the applicant’s present complaints are to be examined solely under Article 6 § 1 and Article 13 of the Convention.

8. The Court finds that the complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

9. The relevant general principles regarding the State’s obligations under Article 6 § 1 and Article 13 to ensure that cases concerning a person’s relationship with his or her child are treated with special or exceptional diligence and that there is an effective remedy for an alleged breach of the requirement of the guarantee of “reasonable time” are summarised in several cases (see, among other authorities, Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999‑I; Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI; and Milovanović v. Serbia, no. 56065/10, § 88, 8 October 2019).

10. The Court notes that the domestic proceedings concerned, inter alia, the applicant’s request for custody of her children, who were thirteen, eleven and eight years old respectively when they were initiated, and thus, by their nature, clearly required to be treated with special diligence.

11. The proceedings lasted around three and a half years before the courts at two levels of jurisdiction. For most of that period, the case was pending before the first-instance court. It took that court nearly three years to decide it, which must be considered too long given what was at stake for the applicant.

12. Furthermore, the applicant did not take actions that could have significantly contributed to any delay in those proceedings. Nor is there any indication of any particular substantive or procedural complexity that could explain their length. It appears that they lasted so long mainly because the hearings were repeatedly adjourned and/or postponed and no effort was made by the judicial authorities to ensure that all the parties adhered to a very close time schedule so as to avoid any unnecessary delays. On the whole, the case was not treated with the special diligence required by Article 6 § 1 of the Convention. Accordingly, there has been a breach of that provision.

13. The Court has frequently found violations of Article 13 in cases raising issues similar to the one in the present case, stating that the current Ukrainian legislation does not provide a remedy for complaints concerning the length of proceedings (see, for instance, Efimenko v. Ukraine, no. 55870/00, §§ 48-50 and § 64, 18 July 2006; Vashchenko v. Ukraine, no. 26864/03, § 59, 26 June 2008; and Zabara v. Ukraine [Committee], no. 26007/17, §§ 23-24, 7 November 2019). There is nothing to suggest that such a remedy was available to the applicant in the present case. Accordingly, there has been a violation of Article 13 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

15. The Government contended that the claim was unsubstantiated and/or excessive.

16. The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

17. The Court further 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 application admissible;

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

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

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                      Ivana Jelić
Deputy Registrar                   President

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