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FIFTH
SECTION
CASE OF PANCHENKO v. UKRAINE
(Application
no. 25681/03)
JUDGMENT
STRASBOURG
5 July
2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention.
In the case of Panchenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 25681/03) 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
Russian national, Mr Anton Aleksandrovich Panchenko (“the
applicant”), on 19 July 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
5 April 2006 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
- In
accordance with Article 36 § 1 of the Convention, the
Russian Government were invited to exercise their right to intervene
in the proceedings, but they declined to do so.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1986 and lives in Kaluga, the Russian
Federation.
- On 10 July 2000 the applicant instituted
civil proceedings in the Kirovsky District Court of Dnipropetrovsk,
Ukraine (the “District Court”; Кіровський
районний суд
м. Дніпропетровська)
against Ms M., his relative, claiming part of an intestate house
she had received after the death of their relatives. Subsequently the
applicant amended his claims seeking additional monetary
compensation.
- Between
July 2000 and July 2001 the District Court scheduled
twelve hearings, two of them being adjourned on account of the
applicant's conduct (amendment of claims and failure to appear). Six
hearings were adjourned on account of the defendant's failures to
appear, or at her requests. Three hearings were adjourned in
connection with various court matters.
- On
24 July 2001 the court heard the case in Ms M.'s absence and
allowed the applicant's claims. Ms M. appealed.
- On
11 December 2001 the Dnipropetrovsk Regional Court of Appeal (the
“Court of Appeal”; Апеляційний
суд Дніпропетровської
області),
having heard both parties, upheld this judgment.
- On
13 March 2002 Ms M. appealed in cassation.
- On
20 February 2003 the Supreme Court quashed the judgment of
24 July 2001 and remitted the case for a fresh
consideration to the District Court on the ground that Ms M. had
not been duly informed of the time of the last hearing in the case.
- In
June 2003 – November 2004 the Court scheduled seventeen
hearings, two of them being adjourned on account of the parties'
failure to appear, and two – on account of the applicant's
conduct (one absence and one request). Eight hearings were adjourned
on account of Ms T.'s absences or at her requests. In August
2003 the District Court fined Ms T. for her repetitive failures
to appear. On two occasions hearings were adjourned in connection
with various court matters.
- On
15 November 2004 the District Court allowed the applicant's claims as
to the house and dismissed his claims for compensation.
- On
14 December 2004 Ms M. lodged an appeal.
- On
21 February 2005 the Court of Appeal dismissed Ms M.'s appeal.
- On
17 March 2005 Ms M. lodged a cassation appeal.
- On
26 June 2006 the Supreme Court dismissed Ms M.'s
request for leave to appeal in cassation.
- As
of 20 February 2007 the enforcement proceedings were
pending against Ms M.
- In
the course of the years, the applicant lodged numerous unsuccessful
petitions with various Russian and Ukrainian authorities seeking to
expedite the proceedings.
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.
- The
period to be taken into consideration began on 10 July 2000.
The judicial stage of the proceedings, ending on 26 June 2006,
was five years and eleven and a half months for three levels of
jurisdiction. On 20 February 2007 the applicant last
informed the Court that the enforcement proceedings, started after
the pronouncement of the final judgment, were still pending.
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).
- The
Court notes that the matter before the domestic judicial authorities
was of some importance for the applicant. Every decision taken on the
merits of the case was in the applicant's favour. The judgment of
24 July 2001 was quashed on a procedural ground only,
namely, the court's failure to notify the defendant about the date of
a hearing. The Court does not find that the applicant, although he
did not attend some of the hearings, contributed to the length of the
proceedings in a substantial way. In the Court's opinion, major
delays were caused by the remittal of the case for a fresh
consideration; the defendant's conduct, which largely remained
unpunished by the judicial authorities; and by prolonged periods of
inactivity in the cassation proceedings (eleven and fifteen months).
- 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, 6 September 2005; and
Siliny v. Ukraine, no. 23926/02, 13 July 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that he had no effective remedies for
his complaint concerning the excessive length of the proceedings. He
relied on Article 13 of the Convention.
- The
Government considered that Article 13 was not applicable to the
circumstances of the case as the applicant had not made out an
arguable claim under Article 6 § 1.
- The
Court refers to its findings in paragraphs 23 and 28 above and notes
that this complaint is linked to the applicant's complaint under
Article 6 § 1 and must therefore likewise be
declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). The Government did not name any such remedy available to
the applicant.
- The
Court considers that in the present case there has been a violation
of Article 13 of the Convention on account of the lack of a remedy
under domestic law whereby the applicant could have obtained a ruling
upholding his right to have his case heard within a reasonable time,
as set forth in Article 6 § 1 of the Convention (see Efimenko v.
Ukraine, no. 55870/00, § 64, 18 July 2006).
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 claimed 5,000 euros (EUR) in respect of pecuniary and
10,000 euros in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 600 under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head. The Court
therefore makes no award.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 600
(six hundred euros) 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, plus any tax that may be
chargeable;
(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 5 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
