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FIFTH
SECTION
CASE OF TSYKHANOVSKYY v. UKRAINE
(Application
no. 3572/03)
JUDGMENT
STRASBOURG
6
September 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tsykhanovskyy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3572/03) 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
Ukrainian national, Mr Leonid Khrystoforovych Tsykhanovskyy (“the
applicant”), on 21 November 2002.
- The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
- On
7 September 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Kryvyy Rig.
- On
19 July 1994 the applicant, who worked in the system of
public education at the material time, became permanently disabled
following injury to his back and legs. The injury was recorded as a
work accident and since February 1995 the applicant was
receiving monthly disability allowances from the Ternivsky Department
of Public Education (the “Department”; Тернівське
районне відділення
народної освіти).
- On 17 July 1997
the applicant instituted civil proceedings in the Zhovtnevy District
Court of Kryvyy Rig (the “District Court”; Жовтневий
районний
суд м. Кривий
Ріг) seeking a
higher allowance.
- On
4 March 1998 the Department lodged a counter-claim seeking
to establish that the applicant's trauma was not work-related.
- Between
September 1997 and December 2001 the District Court
scheduled some thirty hearings, with intervals ranging from two weeks
to four months. On numerous occasions the hearings were adjourned on
account of the parties' conduct (requests for adjournments or
absences). According to the court records, five such adjournments
were attributable to the applicant, twelve – to the Department,
and eight – to both parties. Two hearings were adjourned in
connection with court matters.
- On
7 December 2001 the District Court left the applicant's
claim and the Department's counter-claim without consideration on
account of the parties' repeated failure to appear.
- According
to the applicant, he learned about this decision only in May 2002,
from the District Court's response to his request for expedition of
the proceedings. The applicant submitted to the Court a copy of this
request dated 23 April 2002 and a copy of the District
Court's response of 23 May 2002, in which the court was
informing the applicant that his claims had been left without
consideration on 7 December 2001. The applicant further
noted that on 11 January 2002 the District Court had
summoned him for a hearing for 4 February 2002. To this end
he submitted a copy of a summons of 11 January 2002, which,
insofar as relevant, reads as follows:
“The Zhovtnevy District Court of Kryvyy Rig
summons you as a plaintiff for 10 p.m. on 4 February 2002
in connection with the case for compensation of damage...”
The
applicant explained that he attended this hearing together with his
witness Mr U., but it was adjourned on account of the
Department's failure to appear. He presented a copy of Mr U.'s
statement confirming he had appeared for the hearing of
4 February 2002.
- According
to the Government, the applicant learned about the decision of
7 December 2001 no later than on 24 December 2001,
when he visited the District Court and requested certain documents
from his case-file. They further noted that by the summons of
11 January 2002 the District Court had intended to invite
the applicant to collect the documents he had requested. To this end,
the Government presented a statement signed by Judge K. of the
District Court.
II. RELEVANT DOMESTIC LAW
Code
of Civil Procedure, Article 216
“The court shall send copies of ... decisions to
leave the claims without consideration within a five-day period from
the date of their pronouncement to the parties..., who were not in
fact present at a hearing during the examination of the case”.
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...”
A. Admissibility
- The
Government noted that the applicant had lodged his application with
the Court on 21 November 2002, and so more than six months
from the date on which the proceedings had ended. They submitted that
the application had been lodged out of time.
- The
applicant submitted that the six-month period should be counted from
23 May 2002, when he learned about the decision of
7 December 2001 to leave his claims without consideration.
- The
Court recalls that, where pursuant to domestic law and practice, the
applicant is entitled to be served ex officio with a written
copy of the judgment, the six-month period under Article 35 § 1
of the Convention begins to run from the date of receipt (see Worm v.
Austria, judgment of 29 August 1997, Reports of
Judgments and Decisions 1997 V, §§ 33-34).
- Turning
to the facts of the present case, the Court notes that the Government
have not presented any evidence that the decision of 7 December 2001
was served on the applicant within five days of its pronouncement or
at any other date preceding 23 May 2002. Furthermore, the
Court recalls that the summons served on the applicant on
11 January 2002 called on him as a “plaintiff”
in the proceedings and contained no reference to his requests for
any documents from the case-file. The Government did not provide any
plausible objection against the applicant's argument that he had
attended this hearing, which had been adjourned on account of the
Department's absence.
- Under
these circumstances the Court accepts the applicant's argument that
it was only in May 2002 that he learned about the decision of
7 December 2001 and dismisses the Government's preliminary
objection.
- The
Court finds no ground for declaring the applicant's complaint
inadmissible. The Court must therefore declare it admissible.
B. Merits
- In
their observations on the merits of the case, the Government
contended that there had been no violation of Article 6 § 1
of the Convention. Particularly, the delays in the proceedings were
largely attributable to the parties, including the applicant himself.
- The
applicant disagreed. He maintained that the court records were
incorrect. It was only the defendant, who had failed to appear for
the hearings, marked as adjourned on account of both parties'
absence. The applicant further contended that he could be held
accountable only for two adjournments, when his lawyer was not able
to appear for the hearings.
- The
Court recalls that the applicant instituted his proceedings on
17 July 1997. However, the period to be taken into
consideration began only on 11 September 1997, when the
recognition by Ukraine of the right of individual petition took
effect. Nevertheless, in assessing the reasonableness of the time
that elapsed after that date, account must be taken of the state of
proceedings at the time. The proceedings were discontinued on
7 December 2001 after having lasted four years and three
months for one level of jurisdiction. However, it was only six and a
half months later that the applicant learned about that decision (see
paragraph 17 above).
- 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).
- Turning
to the facts of the present case, the Court notes that regardless of
the applicant's contention that the court records were incorrect, the
applicant can be held accountable for some of the adjournments in the
proceedings. However, it further observes that more than half of the
adjournments were attributable to the conduct (requests and absences)
of the defendant – a State entity. Furthermore, it recalls that
it is the role of the domestic courts to manage their proceedings so
that they are expeditious and effective, particularly, to decide
whether to adjourn the hearings at the parties' requests as well as
whether to take any action against the parties, whose behaviour
caused unjustified delays in the proceedings. It recalls that it has
frequently found violations of Article 6 § 1 of the Convention
in cases raising issues similar to the one in the present case (see
e.g., Smirnova v. Ukraine, no. 36655/02,
8 November 2005 and Karnaushenko v. Ukraine,
no. 23853/02, 30 November 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. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 of
the Convention that the hearings in his case were unfair, in
particular as the decision of 7 December 2001 was taken in
violation of applicable procedural law. He further invoked
Article 8 § 1 of the Convention to the facts of
the present case.
- The
Court recalls that the applicant has never appealed against the
impugned court decision before the domestic courts and, having
carefully examined the applicant's submissions in the light of
available materials and insofar as the matters complained of are
within its competence, 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
§§ 1, 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 claimed 280,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage and EUR 1,572.60 in monthly allowances.
- The
Government submitted that these claims were exorbitant and
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the monthly allowances and pecuniary damage alleged; it therefore
rejects these claims. 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 2,400 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 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,400
(two thousand four 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 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
