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FIFTH
SECTION
CASE OF PONOMARENKO v. UKRAINE
(Application
no. 1071/08)
JUDGMENT
STRASBOURG
6 October
2011
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:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 1071/08) against Ukraine
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
Ukrainian national, Mr Ivan Ivanovich Ponomarenko (“the
applicant”), on 7 December 2007.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice.
- On
10 September 2010 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance
with Protocol No. 14, the application was allocated to a Committee of
three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1938 and lives in
Dnipropetrovsk.
- On
12 July 1999 he lodged a claim with the Zhovtnevyy District Court of
Dnipropetrovsk (“the District Court”) against the local
authorities and his sister in a dispute over inheritance.
- On
17 August 2004 the District Court returned the applicant’s
claim unexamined for his failure to attend the hearing. On 1 December
2004 the Dnipropetrovsk Regional Court of Appeal (“the Court of
Appeal”) quashed that decision and remitted the case for fresh
examination on the ground that the applicant had been absent from the
hearing for a valid reason (sickness).
- On
13 November 2006 the District Court partially allowed the applicant’s
claim.
- On
7 December 2006 the applicant appealed against the above judgment. On
21 December 2006 the Court of Appeal requested him to lodge the
appeal, by 15 January 2007, in accordance with the procedural
formalities. Following that, on 25 April 2007 the Court of Appeal
rejected the appeal as unsubstantiated.
- On
10 July 2007 the Supreme Court upheld the decisions of 13 November
2006 and 25 April 2007.
- According
to the Government, the District Court adjourned six hearings due to
the applicant’s and other parties’ failure to appear or
following the applicant’s requests. This protracted the
proceedings to approximately nine months. The applicant disagreed
stating that he could not attend only four hearings, due to his
sickness. The above court further adjourned thirty three hearings,
mainly due to the respondent’s failure to attend the hearings
or following their requests, due to the absence of a judge, the need
to collect additional documents or for unspecified reasons.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal ...”
- The
Government contested that argument stating that the case had been
complex and that the applicant had contributed to the overall length
of the proceedings by failing to attend several hearings and by
lodging various procedural petitions.
- The
period to be taken into consideration began on 12 July 1999 and ended
on 10 July 2007. It thus lasted eight years for three levels of
jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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).
16. Turning
to the circumstances of the case, the
Court considers that the complexity of the case and the conduct of
the applicant, who somewhat contributed to the length of the
proceedings (see paragraphs 8 and 10 above), cannot explain
their overall duration. On the other hand, the Court finds that the
protraction of the proceedings was mainly caused by the lengthy
consideration of the case by the District Court and by thirty three
adjournments of the hearings (see paragraphs 5-7 and 10 above). The
Court concludes, therefore, that the main responsibility for the
lengthy duration of the proceedings rests with the State.
- 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; Pavlyulynets v. Ukraine,
no. 70767/01, § 53, 6 September 2005; and Moroz
and Others v. Ukraine, no. 36545/02,
§ 62, 21 December 2006).
- 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.
II. THE REMAINING COMPLAINT
- The
applicant also complained under Article 13 of the Convention about
the unfairness and unfavourable outcome of the proceedings.
- Having carefully examined the
applicant’s submissions in the light of all the material in its
possession and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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 reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant stated that he had suffered pecuniary
and non-pecuniary damage on account of the actions of the domestic
courts, without further specification.
- The
Government left the matter to the Court’s discretion.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards him 1,100 euros (EUR) under
that head.
B. Costs and expenses
- The
applicant made no claim for costs and expenses. Accordingly, the
Court considers that there is no call to award him
any sum under this head.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months EUR 1,100 (one thousand one hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
