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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
- 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.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- 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
- The
applicants were born in 1968 and live in Kremenchug.
- On
7 August 1997 they instituted court proceedings against the U. bank
in a dispute over a contract of pledge of a car.
- 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.
- 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.
- On
23 December 2005 the Court of Appeal quashed the above judgment in
the part concerning the award and upheld its remainder.
- 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.
- 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
- 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.
- 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
- 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...”
- The
Government contested that argument.
- 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
- 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
- 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).
- 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.
- 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).
- 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
- 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
applicants claimed a sum representing the cost of their car for
pecuniary damage and 5,000 euros (EUR) for 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 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
- 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.
- 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.
- 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
- 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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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;
- 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
