FIFTH SECTION

CASE OF MARUTSENKO v. UKRAINE

(Application no. 24959/06)

JUDGMENT

STRASBOURG

31 May 2011

This judgment is final but it may be subject to editorial revision.

In the case of Marutsenko 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 10 May 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24959/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Igor Vadimovich Marutsenko (“the applicant”), on 24 June 2005.
2.  The applicant was represented by Mr I. Pogasiy, a lawyer practising in Kirovohrad. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
3.  On 25 January 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
4.  The applicant was born in 1967 and lives in Kirovohrad.
5.  On 21 June 2005 the applicant lodged a civil claim with the Kirovskyy District Court of Kirovohrad (“the Kirovskyy Court”) against the Military Unit A-1405 for pecuniary and non-pecuniary damage.
6.  On 21 February 2006 the court decided to discontinue the proceedings as a result of the applicant’s failure to attend the hearings.
7.  On 19 September 2007 the applicant requested an extension of time to lodge the appeal against the above ruling and submitted that he had become aware of the impugned ruling in July 2007.
8.  On 24 October 2007 the Kirovohrad Regional Court of Appeal quashed the ruling of 21 February 2006. It remitted the case for examination by the first-instance court, having found that the applicant had not been duly notified of the time and date of the hearings. The Court of Appeal ruled that the first-instance court had erred in its decision to discontinue the proceedings.
9.  On 18 July 2008 the Kirovskyy Court considered that it was not competent to deal with the case because it lacked jurisdiction ratione materiae. It discontinued the civil proceedings and held that the case should be examined within the framework of the administrative proceedings.
10.  Following examination of the applicant’s appeal on its merits, on 24 December 2008 the Court of Appeal quashed the ruling of 18 July 2008. It held that the first-instance court had erred in its decision to discontinue the proceedings and considered that the case should be examined within the framework of civil proceedings. The Court of Appeal remitted the case for examination to the Kirovskyy Court.
11.  On 25 February 2009 the Kirovskyy Court decided to discontinue the proceedings because of the applicant’s failure to attend the hearings.
12.  On 24 June 2009 the Court of Appeal quashed the ruling of the Kirovskyy Court on the ground that the applicant had not been duly notified of the time and date of the hearings and remitted the case for examination to the first-instance court.
13.  On 16 June 2010 the Kirovskyy Court for the third time decided to discontinue the proceedings because of the applicant’s repeated failure to attend the hearings. The applicant did not lodge an appeal against that decision.
14.  In the course of the proceedings sixteen hearings were adjourned, out of which three times because of the applicant’s failure to attend the hearings, once because of the failure of the respondent’s representative and five times because of the parties’ failure to attend the hearings. On seven occasions the hearings were adjourned for a total period of about nine months because of the judge’s or secretary’s absence or for technical reasons. The applicant adjusted his claims once.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15.  The applicant complained that the length of the proceedings was 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
16.  The Government submitted that the application of 24 June 2005 lodged by the applicant with the Court was not clearly reasoned and did not comply with the admissibility criteria envisaged by Article 35 § 3 of the Convention.
17.  The Court notes that the complaints of excessive length of the civil proceedings and lack of effective remedies in this respect were first raised by the applicant in his duly completed and signed application of 27 October 2005 and further maintained in his submissions of 4 October 2009. The Court therefore dismisses the Government’s objection.
18.  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
19.  The applicant complained that the length of the proceedings was excessive.
20.  The Government contested this complaint. They submitted that the delays in the proceedings had been caused by the behaviour of the parties, in particular by their failure to attend the hearings and to lodge appeal in due time.
21.  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).
22.  Turning to the facts of the present case, the Court notes that the period to be taken into consideration began on 21 June 2005 and ended on 16 June 2010. It has thus lasted approximately five years at two levels of jurisdiction.
23. The Court notes that the applicant’s claim for recovery of compensation for pecuniary and non-pecuniary damage from a military unit did not raise a legal or factual issue of any particular complexity.
24.  The Court further observes that since the introduction of the applicant’s claim before the domestic courts in June 2005 it was never considered on its merits. It finds that significant delays in the proceedings were caused by the repeated remittals of the case for fresh examination because of the first-instance court’s failure to comply with the procedural requirements, namely failure to notify the applicant about the date and time of the hearings, as it was stated in the rulings of the Court of Appeal (see paragraphs 8, 10 and 12 above). It considers that the applicant’s behaviour alone (see paragraphs 13 and 14 above) cannot justify the length of the proceedings in question.
25.  The Court considers that the proceedings were of some importance to the applicant. Although the compensation claimed by the applicant was not his main source of income and no specific circumstances called for urgent examination of his claim, this did not exempt the courts from ensuring that the reasonable time requirement of Article 6 was complied with.
26.  In the light of the circumstances of the present case, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.
27.  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; and Mkrtchyan v. Ukraine, no. 21939/05, §§19, 22-23, 20 May 2010).
28.  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, it holds 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.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
29.  The applicant complained of lack of effective remedies in respect of his complaint concerning the length of the proceedings. He relied on Article 13 of the Convention, which reads, in so far as relevant, as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ”
30.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
31.  Having regard to its well-established case-law on the matter, the Court finds that in the present case there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy in respect of the applicant’s complaint under Article 6 § 1 of the Convention about the length of the proceedings (see, for example, Efimenko v. Ukraine, no. 55870/00, § 64, 18 July 2006 and, for a recent authority, Gutka v. Ukraine, no. 45846/05, § 34, 8 April 2010).
III.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
32.  The applicant complained that, by failing to examine his case within the reasonable time, the State violated his right to peaceful enjoyment of property. He relied in this respect on Article 1 of Protocol No. 1, which reads, in so far as relevant, as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
33.  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.
34.  Having regard to its finding under Article 6 § 1 (see paragraph 28 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194‑C; and Efimenko v. Ukraine, no. 55870/00, § 68, 18 July 2006).
IV.  OTHER COMPLAINTS
35.  The applicant complained under Article 6 § 1 of unfairness of the proceedings and of lack of access to a court. He also complained of a violation of Article 1 of Protocol No. 1 in that the State authorities had allegedly misappropriated his property and had not provided him with compensation for it.
36.  In the light of the materials in its possession, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
37.  It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
38.  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
39.  The applicant claimed 10,019.04 Ukrainian hryvnias (UAH) in respect of pecuniary damage and 5,000 euros in respect of non-pecuniary damage.
40.  The Government contested these claims.
41.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, ruling on equitable basis, it awards the applicant EUR 1,800 in respect of non-pecuniary damage.
B.  Costs and expenses
42.  The applicant also claimed UAH 3,800 for the costs and expenses incurred before the domestic courts and UAH 18,087.32 for those incurred before the Court.
43.  The Government contested these claims.
44.  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 1,506 for the proceedings before the Court, covering his expenses for legal assistance and correspondence with the Court.
C.  Default interest
45.  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 applicant’s complaint concerning the alleged excessive length of the proceedings and of lack of an effective remedy in that respect admissible and the remainder of the application inadmissible;

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

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 to the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,800 (one thousand eight hundred euros) in respect of non-pecuniary damage and EUR 1,506 (one thousand five hundred and six euros) for costs and expenses, plus any tax that may be chargeable, 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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Deputy Registrar	President