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FIFTH
SECTION
CASE OF
GERZHIK v. UKRAINE
(Application
no. 40427/08)
JUDGMENT
STRASBOURG
2
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Gerzhik v. Ukraine
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 40427/08) against Ukraine
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (hereafter – “the Convention”) by a
Ukrainian national, Mr Pyotr Georgiyevich Gerzhik (“the
applicant”), on 1 August 2008.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- On
10 September 2010 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1931 and lives in the
village of Petrivka in the Odessa region.
- In
the early 1990s the local authorities undertook to connect the
village to a gas pipeline. Starting from July 1994 the applicant was
entrusted with directing the works. According to him, at that point
the public funding was interrupted and the construction was continued
at the expense of certain villagers. After the works’
completion in 1997 the village council and some of the villagers
publicly accused the applicant of embezzling public funds, which, as
they claimed, had been allocated to him for the construction works in
question.
A. Proceedings against the village council, Mr S. and
Ms K. (first set)
- On
17 August 1999 the applicant instituted proceedings against the
village council, as well as against Mr S. and Ms K., seeking
compensation for damages in respect of the aforementioned
embezzlement accusations considered by him to be defamatory.
- On
18 April 2000 the Ivanivka District Court (“the Ivanivka
Court”) allowed the applicant’s claim in part.
- On
4 July 2000 the Odessa Regional Court of Appeal (“the Odessa
Regional Court”) quashed the aforementioned judgment and
remitted the case back to the Ivanivka Court for fresh consideration.
- On
22 August 2000 the case was transferred to the Kominternivskyy Town
Court (“the Kominternivskyy Court”).
- The
examination of the case was adjourned several times for the
followings reasons: the applicant’s absence or at his lawyer’s
request (for about four months in total); the adversary party’s
absence (for about ten months); and the judge’s leave (for two
months).
- On
20 January 2003 the Kominternivskyy Court rejected the applicant’s
claim, as well as the counterclaim of Ms K. which she had lodged in
the meantime, as unsubstantiated.
- On
20 February 2003 the applicant appealed.
- On
26 June 2003 the Odessa Regional Court dismissed that appeal
following a hearing, in which the applicant had participated. It was
noted in the ruling that it could be appealed in cassation within a
month after its pronouncement.
- On
27 August 2003 the applicant lodged a cassation appeal, together with
a request for renewal of the time-limit. He contended, in particular,
that the ruling in question had been served on him with a delay and
that he had required additional time for preparing his appeal in
cassation given his advanced age and poor health.
- On
31 October 2003 the Kominternivskyy Court, following a hearing with
the applicant’s participation, refused to renew the time-limit
for his appeal in cassation, having found that the reasons advanced
by him were not sufficiently serious for that.
- On
13 November 2003 the applicant challenged that ruling on appeal.
- On
11 December 2003 the president of the Odessa Regional Court admitted,
in his reply to the applicant’s complaint about the length of
the proceedings, that there had indeed been some delays in dealing
with his case by the first-instance court and that the judge in
charge had been reprimanded in that regard.
- On
24 February 2004 the Odessa Regional Court found against the
applicant, having upheld the decision of the first-instance court.
- On
20 March 2004 the applicant appealed in cassation. He submitted,
inter alia, that the adversary party had obtained, without his
knowledge, a medical certificate regarding his health which had
wrongly been adduced to the case file.
- On
22 March 2007 the Supreme Court transferred the applicant’s
appeal in cassation to the Kharkiv Regional Court of Appeal (“the
Kharkiv Regional Court”), in compliance with the legislative
amendments.
- On
2 July 2007 the Kharkiv Regional Court held that the lower courts had
correctly rejected the applicant’s request for the renewal of
the procedural time-limits.
- According
to the applicant, the aforementioned ruling was served on him on 22
July 2008, following his enquiry with the Supreme Court about the
case progress of 7 April 2008.
B. Proceedings against Ms P. (second set)
- On 28 May 2003 the applicant lodged a separate
compensation claim with the Ivanivka Court against a certain Ms P.
alleging that she had disseminated defamatory information about him,
including in the framework of the above proceedings.
- On
22 September 2003 the applicant challenged the judge dealing with his
case.
- On
the following day his motion was granted, and the case was assigned
to another judge.
- On
4 February 2004 the Ivanivka Court stayed the proceedings at the
applicant’s request, pending the receipt of the case file
materials in respect of the first set of the defamation proceedings
(see above), which the applicant considered to be of relevance for
this case.
- On
17 November 2006 the case was transferred to another judge following
an increase of the court’s staff.
- In
early December 2006 the court resumed the examination of the case. It
adjourned its hearing in December 2006 for about two months because
of the defendant’s failure to attend.
- On
11 June 2007 the Ivanivka Court found against the applicant.
- On
20 November 2007 and 5 March 2008 the Odessa Regional Court and the
Supreme Court, respectively, upheld that judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE FIRST SET OF PROCEEDINGS
- The
applicant complained that the length of the
first set of proceedings had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention. The applicant also relied on Article 13 of the
Convention. The Court considers that the complaint must be examined
solely under Article 6 of the Convention, which reads, in so far as
relevant, 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
- The
Government contended that this complaint had been submitted to the
Court out of six months to be calculated from 26 June 2003 as the
date of the final domestic decision on the merits of the applicant’s
claim.
- The
applicant disagreed.
- The
Court notes that the decision of the appellate court of 26 June 2003
cited by the Government was followed by the judicial examination of
the applicant’s request for renewal of the time-limit for
lodging a cassation appeal. Until the domestic courts had a final say
as to whether the applicant had missed the time-limit in question for
valid reasons, there remained a possibility for him to pursue the
cassation appeal as a part of the regular procedure. Accordingly, the
Court considers that the proceedings were completed on 2 July 2007
with the final rejection, by the Kharkiv Regional Court, of the
aforementioned request of the applicant, but not on 26 June 2003 as
purported by the Government (see and compare with Balaguta
v. Ukraine (dec.), no. 18291/04, 4 November 2008, and
Kolomoyets v. Ukraine, no. 11208/03, §§
19, 20 and 44, 15 July 2010).
- The
Court further reiterates that it is for the Government pleading
non-respect of the six-month rule to demonstrate the date on which
the applicant became aware of the final decision (see Yeroshkina
v. Ukraine, no. 31572/03, § 30, 18 June 2009).
- Turning
to the present case, the Court notes that the applicant’s
assertion about having been served the decision of 2 July 2007 only
on 22 July 2008 was neither denied by the Government nor refuted
by any materials in the case file. The Court therefore takes 22 July
2008 as the date when the applicant became aware of the final
domestic decision in this set of proceedings.
- Given
that the applicant introduced his application with the Court about a
week thereafter, on 1 August 2008, the Court considers that he
complied with the six-month time-limit under Article 35 § 1 of
the Convention and rejects the Government’s objection in this
regard.
- The
Court further notes that this complaint is neither manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
- The
applicant maintained that the length of the proceedings had been
excessive.
40. The
Government contested this complaint submitting that the
domestic courts had acted with due diligence and that the applicant
had himself contributed to the overall length of the proceedings, in
particular, by his failure to respect the procedural formalities.
41. 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 notes that the period to be taken into consideration in the
present case began on 17 August 1999 and ended on 22 July 2008 (see
paragraphs 6, 22 and 36 above). Thus, it lasted around eight years
and eleven months. The Court observes that, of this period, during
about three years and ten months the domestic courts of two levels of
jurisdiction examined the applicant’s claim on merits (see
paragraphs 6-13 above). Furthermore, it took the applicant two months
to introduce his cassation appeal, whereas the applicable procedural
legislation provided for the time-limit of one month (see paragraph
14 above). Finally, the remaining four years and almost eleven months
had elapsed before the courts of three levels of jurisdiction dealt
with the applicant’s request for renewal of the time-limit for
lodging his cassation appeal. Of this last-mentioned period, the
court of cassation instance examined the issue for more than three
years and three months and informed the applicant of its decision
more than a year thereafter (see paragraphs 15-21 above).
- The
Court does not discern any particular complexity in the proceedings.
At the same time, given their significance for the applicant’s
reputation among fellow villagers, the Court considers that they must
have been of importance for him.
- As
regards the conduct of the applicant, the Court finds that he
contributed to the delays, particularly, by missing the time-limit
for lodging his cassation appeal and appealing against the subsequent
refusals of the courts to renew that time-limit. In this respect the
Court reiterates that although a party to civil proceedings cannot be
blamed for using the avenues available to him under domestic law in
order to protect his interests, he must accept that such actions
necessarily prolong the proceedings concerned (see Malicka-Wasowska
v. Poland (dec.), no. 41413/98, 5 April 2001, and Kolomoyets
v. Ukraine, cited above, § 47).
- The
Court notes however that the main delay – of four years and
three months – took place after the applicant had introduced,
on 20 March 2004, his appeal in cassation regarding the time-limit
renewal request (see paragraphs 19-21 above). This delay appears
attributable to the domestic courts and cannot be justified (see and
compare with Rudysh v. Ukraine, no. 18957/03, § 21,
15 November 2007).
- The
Court reiterates that a delay at some stage may be acceptable if the
overall duration of the proceedings cannot be deemed excessive (see
Kolomoyets, cited above, § 49). In the present case, the
Court considers that the aforementioned delay of more than four years
prolonging the overall length of the proceedings to almost nine years
cannot be considered as reasonable under the circumstances.
- The
Court therefore concludes that there has been a breach of Article 6
§ 1 of the Convention in this regard.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE SECOND SET OF PROCEEDINGS
- The Court observes that the period to be taken into
consideration began on 28 May 2003 and ended on 5 March 2008. It thus
lasted around four years and nine months for three levels of
jurisdiction.
-
The Court notes that more than half of this period was attributable
to the stay requested by the applicant, pending the receipt of the
case file materials in respect of the first set of the defamation
proceedings, which he considered to be of relevance for this case
(see paragraph 26 above). The Court considers that the applicant must
have foreseen and accept that his request to stay the second set of
proceedings would necessarily prolong its duration. The
responsibility for such action, if not of the excessive length
itself, may not therefore be attributable to the State solely (see
Malicka Wasowska, cited above).
- Having
regard to all the circumstances of the case and, in particular, to
the overall duration of this set of proceedings, the Court finds that
their length did not exceed what may be considered “reasonable”.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
III. OTHER COMPLAINTS
- The
applicant further complained that his defamation
by fellow villagers amounted to his inhuman treatment in breach of
Article 3 of the Convention. He also complained under Article 6 §
1 about inadequate assessment of the facts by the courts. Relying on
Article 8 of the Convention, he next complained about the
respondent’s obtaining his medical certificate and its adducing
to the case file. Lastly, referring to Article 13 of the Convention,
the applicant complained that the dismissal of his cassation appeal
in the first set of proceedings on the ground of missing the
time-limit had constituted his deprivation of a domestic remedy and
denial of the access to court.
- 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.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
IV. 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 compensation in respect of
pecuniary damage, without specifying its amount. He also claimed
500,000 Ukrainian hryvnias (UAH)
in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards award him EUR 2,400 under that head.
B. Costs and expenses
- The
applicant claimed unspecified amount as costs
and expenses without submitting relevant supporting documents.
- The
Government 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
as it was not supported by itemised particulars as required under
Rule 60 §§ 2 and 3 of the Rules of 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 first set of 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 of 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), plus any tax that may be
chargeable, 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;
(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 2 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark
Villiger
Deputy Registrar President
