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FIFTH
SECTION
CASE OF SHANKO v. UKRAINE
(Application
no. 39970/02)
JUDGMENT
STRASBOURG
26 July
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 Shanko 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 Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39970/02) 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 Oleg Nikolayevich Shanko (“the
applicant”), on 22 October 2002.
- The
Ukrainian Government (“the Government”) were represented
by their agents, Mrs. V. Lutkovska succeeded by Mr Y. Zaytsev,
and by Mrs I. Shevchuk, Head of the Office of the
Government Agent before the European Court of Human Rights.
- On
27 June 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Poltava. He is a former
manager of the State Company “Znamya” (the “Company”;
Державне
підприємство
«Виробниче
об'єднання
«Знамя»).
- In
1996 the applicant was convicted and sentenced for embezzlement of
the Company funds and his conviction became final. Since then the
applicant has unsuccessfully attempted to have the proceedings
re-opened and the conviction repealed.
- In
August 1996 the Poltava Regional Prosecutors' Office, acting on
behalf of the Company, brought a civil claim against the applicant
for compensation of damage caused by his offence.
- The
hearings began in March 1998. Until February 2000 the court
scheduled some thirteen hearings with intervals ranging from one week
to six months. Seven hearings were adjourned on account of the
applicant's absences or requests and four hearings on account of the
absence of both parties. According to the applicant, most of his
absences were attributable to defective notifications about the date
of a hearing. The Government did not comment on this issue.
- On
17 February 2000 the District Court allowed the claim and awarded the
Company 96,682 hryvnyas
against the applicant. The applicant appealed.
- On
20 May 2000 the District Court returned the applicant's
appeal as “not lodged” on account of his failure to pay
the court fee. The applicant appealed, seeking to be exempted from
the payment.
- On
12 October 2000 the local municipal council exempted the
applicant from paying the court fee and on 16 November 2000
the Regional Court declared his appeal admissible.
- On
7 December 2000 the Regional Court quashed the judgment of
17 February 2000.
- Between
January 2001 and May 2002 the District Court scheduled
three hearings (in April and November 2001 and March 2002).
One hearing was adjourned on account of the judge's sickness and two
other hearings on account of the parties' failure to appear.
- On
22 May 2002 the District Court left the claim without consideration
due to the parties' second failure to appear for the hearings. This
decision was not appealed against within the statutory time-limit and
became final.
- On
11 December 2002 the Prosecutor's Office applied to the District
Court for leave to appeal out of time against the decision of 22 May
2002 maintaining, that it had not been informed of this decision
within the time-limit for lodging an appeal. The application was
granted on 17 January 2003.
- On
15 May 2003 the Regional Court allowed the appeal and re-opened
the proceedings, having found that the parties had not appeared as
the District Court had not duly notified them about the dates of the
hearings. The applicant lodged a cassation appeal against the
decision to re-open the proceedings.
- On
20 September 2004 the Supreme Court rejected the applicant's
cassation appeal.
- Between
October 2004 and July 2005 the District Court scheduled
three hearings (one in May and two in July 2005).
- In
July 2005 the plaintiff dropped the claims and on 14 July 2005
the proceedings were terminated.
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
Court notes that the proceedings at issue were instituted in 1996.
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 period in
question ended on 14 July 2005, when the plaintiff dropped
the claims. It thus lasted seven years and ten months, during which
period the merits of the case were examined by two levels of
jurisdiction.
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).
- Turning
to the facts of the present case, the Court finds that the domestic
authorities are largely responsible for delays in the civil
proceedings at issue (notably, for the prolonged periods of
inactivity and defective communication practices, such as failures to
inform the parties of the hearing dates and to notify the plaintiff
about the decision of 22 May 2002 in due time). The Court
has already found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see e.g., Moroz and Others v. Ukraine,
no. 36545/02, § 59, 21 December 2006 and,
mutatis mutandis, Sukhorubchenko v. Russia,
no. 69315/01, §§ 53-56, 10 February 2005).
- 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 also complained about breach of his rights set forth by
Articles 5, 6, 7 and 13 of the Convention in the course of the
criminal proceedings against him and about infringement of the
guarantees of Article 2 of Protocol No. 7 on account
of the authorities' refusal to review his final conviction. He
further stated that the civil proceedings against him were unfair
contrary to Article 6 § 1. Lastly, the applicant
invoked Articles 3, 14 and 17 of the Convention to the facts of
the present case.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession, and insofar 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 1,281,351,008 dollars (1,084,328,517 euros
(EUR)) in respect of pecuniary and 91,000 dollars (EUR 77,007)
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. However, the amount claimed is
excessive. Ruling on an equitable basis, the Court awards him
EUR 2,400 under that head.
B. Costs and expenses
- The
applicant also claimed 7,000 dollars (EUR 5,924) in legal fees
incurred by him in connection with the criminal proceedings and 300
dollars (EUR 254) for postal, translation, and other costs and
expenses.
-
The Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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. The Court recalls that the legal fees claimed by the
applicant were incurred not in connection with the civil proceedings
at issue in the present case. It further notes that the applicant
presented no receipts or other evidence of postal and other expenses
claimed. Having regard to the information in its possession and the
Court's case-law, the Court dismisses the claim under this head.
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 civil 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 26 July 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
