FIFTH SECTION

CASE OF PONOMARENKO v. UKRAINE

(Application no. 20930/06)

JUDGMENT

STRASBOURG

21 December 2010

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:
	Rait Maruste, President,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 30 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 20930/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Maksim Alekseyevich Ponomarenko and Mrs Svetlana Vitalyevna Ponomarenko (“the applicants”), on 16 May 2006.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3.  On 16 March 2010 the Court declared the application partly inadmissible and decided to communicate the complaint about the length of the proceedings to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicants were born in 1968 and live in Kremenchug.
5.  On 7 August 1997 they instituted court proceedings against the U. bank in a dispute over a contract of pledge of a car.
6.  On 18 February 2002 the Svitlovodsk Court delivered a judgment in the case. On 27 June 2002 the Kirovograd Regional Court of Appeal upheld it. On 10 November 2004 the Supreme Court quashed the above decisions and remitted the case for fresh consideration.
7.  On 8 November 2005 the Svitlovodsk Court partially allowed the applicants' claim, declared the contract of pledge invalid and ordered the U. bank to pay the applicants certain amounts for the cost of the car, inflation losses and exemplary damages.
8.  On 23 December 2005 the Court of Appeal quashed the above judgment in the part concerning the award and upheld its remainder.
9.  On 16 June 2006, following the applicants' failure to lodge their appeal in cassation in accordance with the procedural requirements, the Supreme Court returned it unexamined.
10.  According to the Government, in the course of the proceedings three hearings were adjourned due to the applicants' failure to appear and four hearings were adjourned due to both parties' failure to appear. The applicants disagreed stating that they had not attended only two hearings. Seven other hearings were adjourned upon the respondent's request, for third party's failure to appear or due to the absence of a judge.
THE LAW
I.  SCOPE OF THE CASE
11.  Following the Court's partial admissibility decision, the applicants made further submissions, in which they reiterated some of their original complaints and introduced a new complaint under Articles 6 § 1 and 13 of the Convention of lack of access to the Supreme Court, which had returned their appeal in cassation unexamined.
12.  The Court notes that in its partial admissibility decision it adjourned the examination of the applicants' complaint about the length of the proceedings and declared the remaining complaints inadmissible. As to the newly-introduced complaint, the Court considers that it is not an elaboration of the applicants' original complaint about the length of the proceedings, on which the parties have commented (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). Therefore, the scope of the case before the Court is now limited to the length-of-proceedings complaint. New complaints will be dealt with in a separate application.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
13.  The applicants complained that the length of the court 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...”
14.  The Government contested that argument.
15.  The Court notes that 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. However, 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 period in question ended on 16 June 2006. The proceedings thus lasted for about eight years and nine months and involved the courts of three levels of jurisdiction.
A.  Admissibility
16.  The Court notes that the 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
17.  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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
18.  Turning to the circumstances of the case, the Court notes that neither its complexity nor the conduct of the applicants, who somewhat contributed to the length of the proceedings (see paragraphs 9 and 10 above), can explain their overall duration. On the other hand, it finds that the major delays were caused by the lengthy examination of the case by the Svitlovodsk Court (see paragraphs 5 and 6 above) and by the Supreme Court (see paragraph 6 above). It concludes, therefore, that the main responsibility for the length of the proceedings rested with the State.
19.  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, among many other authorities, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006).
20.  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 violation of Article 6 § 1.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
21.  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
22.  The applicants claimed a sum representing the cost of their car for pecuniary damage and 5,000 euros (EUR) for non-pecuniary damage.
23.  The Government contested these claims.
24.  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 applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards them jointly EUR 1,600 under that head.
B.  Costs and expenses
25.  The applicants claimed certain sums in costs and expenses incurred in the domestic proceedings (legal fees, postal and travel expenses) and 2,000 Ukrainian hryvnias (UAH) for legal assistance before the Court. They also claimed UAH 105.07 for correspondence expenses incurred before the Court having provided postal receipts.
26.  The Government contested the claims for costs and expenses in the domestic proceedings and legal costs before the Court stating that they were unrelated to the Court proceedings and not supported by documents. As to the correspondence expenses incurred before the Court, the Government challenged them in part and left their remainder to the Court's discretion.
27.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the above criteria and to the documents submitted by the applicants, the Court awards them jointly EUR 10 for correspondence expenses incurred by them in the proceedings before it.
C.  Default interest
28.  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
1.  Declares the remainder of the application admissible;

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

3.  Holds
(a)  that the respondent State is to pay the applicants jointly, within three months, EUR 1,600 (one thousand six hundred euros) in respect of non-pecuniary damage and EUR 10 (ten euros) in respect of costs and expenses, plus any tax that may be chargeable on the above amounts, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste	Deputy Registrar	President