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FIFTH
SECTION
CASE OF PALAMARCHUK v. UKRAINE
(Application
no. 17842/08)
JUDGMENT
STRASBOURG
24
November 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Palamarchuk 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 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 17842/08) 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 Oleksandr Terentiyovych Palamarchuk (“the
applicant”), on 4 February 2008.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
- On
2 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 1961 and lives in
Vinnytsya.
- On
8 May 1998 he lodged a claim with the Leninskyy District Court of
Vinnytsya (“the Leninskyy Court”) against the S.
enterprise in a consumer dispute between them.
- On
1 February 2000 the above court delivered a judgment. On 28 March
2000 the Vinnytsya Regional Court quashed it and remitted the case
for fresh examination.
- By
a judgment of 20 November 2002, the Leninskyy Court rejected the
applicant’s claim as unsubstantiated.
- On
21 March and 5 May 2003, respectively, the Vinnytsya Regional Court
of Appeal (“the Court of Appeal”) and the Leninskyy Court
requested the applicant to lodge his appeal against the above
judgment in accordance with the procedural requirements. On 4 June
2003, following his failure to do so, the Leninskyy Court returned
the appeal unexamined.
- On
12 February 2004 the Court of Appeal upheld the ruling of 4 June
2003.
- On
31 January 2007 the Supreme Court quashed the ruling of 12 February
2004 and remitted the case to the Court of Appeal for fresh
examination, which on 6 April 2007 upheld the ruling of 4 June 2003.
- On
21 June 2007 the Supreme Court requested the applicant to lodge his
appeal in cassation against the ruling of 6 April 2007 in accordance
with the procedural requirements, following which on 6 August 2007 it
refused to grant leave to the appeal.
- According
to the Government, in the course of the proceedings fourteen hearings
were adjourned due to the applicant’s or both parties’
failure to appear or following the applicant’s requests. The
applicant disagreed stating that he had been absent from eight
hearings because he had not been informed of them. The above delays
on the applicant’s part protracted the proceedings by
approximately four months. Twelve further hearings were adjourned due
to the other party’s, expert’s or witnesses’
failure to appear, absence of the judge or for unspecified reasons.
Two expert examinations were ordered and lasted in total for about
one year.
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 applicant had
contributed to the length of the proceedings.
- The
period to be taken into consideration began on 8 May 1998 and ended
on 6 August 2007 with the final decision given by the Supreme Court,
and not on 20 November 2002 as suggested by the Government (see, for
instance, Kolomoyets v. Ukraine, no. 11208/03, § 44, 15
July 2010). The proceedings thus lasted for about nine years and
three months before three judicial instances.
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).
18. Turning
to the circumstances of the case, the Court considers that the case
was not complex. Nor did the applicant’s conduct, who somewhat
delayed the proceedings (see paragraphs 8, 11 and 12 above) can
explain their overall duration. On the other hand, the Court is of
the view that the major delays in the proceedings were caused by the
domestic courts. In particular, it notes two remittals of the case
for fresh examination (see paragraphs 6 and 10 above), lengthy
examination of the case by the Leninskyy Court and the Supreme Court
(see, respectively, paragraphs 6-7 and 9-10 above) and twelve
adjournments of the hearings (see paragraph 12 above).
- 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).
- 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 of the
Convention.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
21. The
applicant also complained under Article 13 of the Convention about
the unfairness of the proceedings. He also raised a complaint under
Article 17 of the Convention in the same connection.
- 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 claimed 2,274 and 7,000 euros (EUR),
respectively, for pecuniary and 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, it awards the applicant EUR
1,700 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 353 for the costs and
expenses incurred before the domestic courts and the Court. He
provided receipts for correspondence and translation expenses
incurred before the Court to the amount of 1,069.73 Ukrainian
hryvnias.
- The
Government contested the claims for the costs and expenses incurred
before the domestic courts as well as the translation expenses and,
in respect of the correspondence expenses incurred before the Court,
left the matter to the Court’s discretion.
- Regard
being had to the documents in its possession and to its
case law, the Court rejects the claim for costs and
expenses in the domestic proceedings and considers it reasonable to
award the sum of EUR 94 for the proceedings before the Court.
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 1,700 (one thousand seven hundred euros) in
respect of non-pecuniary damage and EUR 94 (ninety-four euros) in
respect of the costs and expenses, plus any tax that may be
chargeable, to be converted into the Ukrainian hryvnia 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Boštjan M. Zupančič
Deputy
Registrar President
