BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF GURYNENKO v. UKRAINE
(Application
no. 37246/04)
JUDGMENT
STRASBOURG
18
February 2010
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 Gurynenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37246/04) 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 Mykola Oksentiyovych Gurynenko (“the
applicant”), on 8 October 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
2 March 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in the town of Cherkassy,
Ukraine.
1. The applicant’s claim for compensation
- In
1987 the applicant had an accident. Later he was registered disabled.
- On
24 April 1997 the applicant instituted proceedings against the
Cherkassy Regional Department of the State Social Insurance Fund,
the Cherkassy Commerce, Catering and Services Trade Union and the
Cherkassy Cooperative Association in the Sosnivsky District Court of
Cherkassy claiming compensation for the damage caused to him as a
result of the accident. The applicants also sought the rectification
of his work records.
- On
8 July 1997 the case was transmitted to the Pridneprovsky District
Court of Cherkassy (“the first-instance court”).
- On
11 December 2002 the first-instance court partly allowed the
applicant’s claims. On 27 January 2003 it gave an additional
judgment by which the remainder of his claims were left without
consideration.
- On
18 April 2003 the Cherkassy Regional Court of Appeal quashed the
judgment of 11 December 2002 and the additional judgment of
27 January 2003 and remitted the case to the first-instance
court for fresh consideration.
- On
16 April 2004 the first-instance court found against the applicant.
- On
8 July 2004 the Cherkassy Regional Court of Appeal upheld that
judgment.
- The
applicant lodged an appeal in cassation with the Supreme Court
against the judgment of 16 April 2004 and the ruling of 8 July 2004.
According to the applicant’s submissions, he also challenged a
number of the procedural decisions taken by the lower courts before
the Supreme Court.
- On
22 December 2005 the Supreme Court dismissed the applicant’s
appeal in cassation.
- In
respect of the applicant’s appeals in cassation against the
procedural decisions, the Supreme Court informed him that they were
not subject to appeal according to the provisions of the Civil
Procedure Code. However, the applicant tried to institute
administrative proceedings against the Supreme Court, claiming that
the latter had taken no action to consider his appeals in cassation.
His efforts were to no avail.
- The
applicant’s subsequent requests to have the judgment of
16 April 2004 and the rulings of 8 July 2004 and 22 December
2005 reviewed under the extraordinary review procedure were rejected
by the domestic courts as unsubstantiated.
B. Other proceedings
(a) Proceedings against the Cherkassy Regional
Federation of Trade Unions
- In
October 2001 the applicant lodged a complaint against the Cherkassy
Regional Federation of Trade Unions for refusing to employ him. On 3
July 2003 the Sosnivsky District Court of Cherkassy found against the
applicant. On 28 October 2003 the Cherkassy Regional Court of Appeal
upheld that judgment. On 6 April 2004 the Supreme Court upheld the
decisions of the lower courts. Later, the applicant tried to
institute criminal proceedings against the judge of the Sosnivsky
District Court of Cherkassy who had considered his case, alleging
that he had forged the court records and destroyed important
documents. His efforts were to no avail.
(c) Proceedings against Mr D.
- In
February 2006 the applicant instituted proceedings against the Head
of the Cherkassy Regional Department of the State Social Insurance
Fund, Mr D., in the Sosnivsky District Court of Cherkassy,
challenging his actions. On 10 April 2007 the court partly allowed
his claims. On 24 November 2008 the Kyiv Administrative Court of
Appeal upheld that judgment.
(d) Proceedings against the judges
- In
2008 and 2009 the applicant instituted a number of administrative
proceedings in the first-instance court complaining about actions of
the judges at the first-instance court and the Supreme Court taken in
their official capacity while considering his claims. These claims
were rejected by the first-instance court. The applicant failed to
provide detailed information about any appeals lodged with the higher
courts against the rulings to reject his claims.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE COMPENSATION PROCEEDINGS
- The
applicant complained that the length of the compensation 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
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 22
December 2005 when the court gave a
final judgment in the case. It thus
lasted about eight years and three months at three 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).
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of
the Convention about the outcome of the proceedings in his cases,
that they had been unfair and that also other than the
above-mentioned compensation proceedings have lasted unreasonably
long. In particular, he alleged that the judges sitting in his cases
had lacked impartiality and had not been independent. He further
complained that the Supreme Court had refused to consider his
cassation appeals against the procedural decisions given by the lower
courts. He complained under Article 1 of Protocol No. 1 about the
outcome of the proceedings concerning compensation. He further
complained under Article 6 § 1 of the Convention that his
efforts to institute criminal proceedings against the judge had been
to no avail. Lastly, he invoked Article 1 of the Convention.
- 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 a total amount of 80,753.86 euros (EUR) in respect
of pecuniary and non-pecuniary damage. This amount included the
applicant’s medical and transport expenses and various
allowances he was allegedly entitled to as a disabled person and EUR
69,525 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, ruling on an equitable basis, it awards the applicant
EUR 1,600 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant submitted that he incurred certain expenses for legal
assistance in the domestic proceedings. He left that matter to the
Court’s discretion. The applicant did not provide any documents
in support of his claim.
- The
applicant further claimed 291,87 Ukrainian hryvnias (UAH, about EUR
28) for copying documents and mailing his letters and documents to
the Court. He also claimed UAH 22.21 (about EUR 2) for mailing his
letters and documents to the domestic courts.
- The
Government agreed that the applicant had incurred some expenses for
copying and mailing his letters to the Court and left this matter to
the Court’s discretion. They contested the remainder of his
claims.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 30 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 under Article 6 § 1
concerning the excessive length of the compensation 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 1,600 (one
thousand six hundred euros) in respect of non-pecuniary damage and
EUR 30 (thirty 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
