LOPUSHANSKYY v. UKRAINE - 27793/08 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2017] ECHR 118 (02 February 2017)

In the case of Lopushanskyy v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Faris Vehabović, President,
          Ganna Yudkivska,
          Carlo Ranzoni, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 10 January 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 27793/08) 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 Volodymyr Mykhaylovych Lopushanskyy (“the applicant”), on 23 April 2008.

2. The applicant was represented by Mr V. Ryzhyy, a lawyer practising in Mykolayiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

3. On 12 January 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Criminal proceedings against the applicant

4. The applicant was born in 1955 and lives in Yuzhnoukrayinsk. At the time of the events he was the director of a private joint stock company.

5. In November 2003 the local court delivered a judgment ordering a debt recovery by a certain Mr Ts. to the applicant. On 12 December 2003 Mr Ts.’s wife, acting under a power of attorney, authorised the applicant to use their car. On 9 March 2004 she revoked her power of attorney. The car, however, remained with the applicant.

6. On 25 and 29 March 2004 criminal proceedings were instituted against the applicant on suspicion of forcible assertion of private rights and extortion, following a complaint by Mr Ts. The latter claimed that the applicant was arbitrarily retaining his car and was extorting money for it.

7. On 30 March 2004 the applicant was arrested in his office as a criminal suspect. He was placed in the Arbuzynka Temporary Detention Facility (“the Arbuzynka ITT”). Following a search of the company’s premises, the police seized the car in question.

8. Two days later, on 1 April 2004, Mr Ts. wrote a receipt confirming that the applicant had paid him 1,700 US dollars (USD) in respect of pecuniary and non-pecuniary damage and that he had no claims against the applicant. He addressed the receipt in question to the investigator dealing with the applicant’s criminal case.

9. On the same day the applicant was released subject to a commitment not to leave the town.

10. On 20 April 2004 the Yuzhnoukrayinsk Town Court (“the Yuzhnoukrayinsk Court”) quashed the decisions of 25 and 29 March 2004. On 3 June 2004 and 5 April 2005 the Mykolayiv Regional Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld that ruling. The courts held that there had been no grounds for instituting criminal proceedings against the applicant as there was no indication of a criminal offence.

B. Compensation proceedings brought by the applicant

11. On 21 September 2005 the applicant lodged a claim for damages against the local prosecutor’s office and police. He claimed compensation for pecuniary and non-pecuniary damage in respect of the following four issues: his arbitrary criminal prosecution, his unlawful arrest, the allegedly unlawful search of the company’s premises, and the seizure of the car as having amounted to his deprivation of property. More specifically, the applicant complained that there had been no reasons to arrest him and that he had never been summoned to the police. He further noted that his arrest had taken place in his office, in front of his colleagues, and that he had suffered stress and humiliation. He also observed, in the context of the complaint about his unlawful detention, that the conditions of his detention in the Arbuzynka ITT had been very poor (poor food and dirty linen, and impossibility to receive any parcels from the outside).

12. The applicant’s claim in respect of pecuniary damage included the amount of the debt owed by Mr Ts. to him, which the applicant estimated as being equivalent to the value of the impounded car. The applicant therefore claimed that that car should be returned to him. Furthermore, he claimed an equivalent to USD 5,000, which he had allegedly been forced to pay to Mr Ts. as a result of the unlawfully instituted criminal proceedings (whereas Mr Ts. had indicated a lower amount, USD 1,700, in his receipt - see paragraph 8 above). The applicant also claimed UAH 150,000 (at the time equivalent to EUR 24,650) in respect of non-pecuniary damage.

13. On 5 May 2006 the Yuzhnoukrayinsk Court allowed the applicant’s claim in part. It awarded him UAH 8,585 in compensation for pecuniary damage, as that was the amount (equivalent to USD 1,700) paid by the applicant to Mr Ts. and confirmed by the latter’s receipt. The court also awarded the applicant UAH 25,000 (at the time equal to about EUR 3,800) in respect of non-pecuniary damage. It relied, in particular, on the Compensation Act and Article 5 of the Convention. The aforementioned amounts were to be paid to the applicant from the State budget.

14. The applicant, the State Treasury of Ukraine and the Mykolayiv Regional Prosecutor’s Office appealed.

15. By a letter of 6 July 2006 the Court of Appeal sent the applicant copies of the defendants’ appeals and informed him that he could comment on them by 14 July 2006. The letter also contained a court summons for 19 July 2006. As indicated on the post stamp, it was dispatched on 14 July 2006. The applicant received that letter on 19 July 2006.

16. On 19 July 2006 the Court of Appeal, following a hearing with the participation of the defendants, but in the applicant’s absence, quashed the judgment of 5 May 2006 and issued a new one. It agreed with the first-instance court’s conclusion that the applicant “had suffered distress as a result of the illegal actions of law-enforcement officials”, but considered the compensation award to be unreasonably high. The appellate court awarded the applicant UAH 5,000 (around 750 euros at the time) in compensation for non-pecuniary damage and UAH 1,000 in costs and expenses. In rejecting his claim for compensation in respect of pecuniary damage, the court noted that the car did not belong to the applicant and the State was not required to reimburse him money paid to a private individual.

17. Neither the decision of the appellate court nor the verbatim records of its hearing contain any information regarding the notification of the applicant of that hearing.

18. The applicant appealed on points of law. He complained, in particular, that he had received the summons on the day of the hearing before the appellate court, which prevented him from participating in it.

19. On 26 November 2007 the Kherson Regional Court of Appeal, acting as a court of cassation, rejected the applicant’s appeal on points of law with broadly couched reasoning that it was unsubstantiated.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Compensation Act 1994 (as worded at the material time)

20. Under the Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (also referred to as “the Compensation Act”), a person is entitled to compensation for damage on account of, in particular, unlawful detention (section 1). One of the possible preconditions for the entitlement to compensation is a refusal to institute criminal proceedings or termination of criminal proceedings for the lack of corpus delicti or for want of evidence of the person’s guilt (section 2).

B. Code of Civil Procedure 2004 (as worded at the material time)

21. Under Article 74, court summonses and notifications must be sent in a timely manner via registered post with proof of receipt. Article 305 obliges an appellate court to adjourn its hearing in case of the absence of one of the parties, where there is no evidence that the court summons has been duly served on him/her/it. Furthermore, under Article 338, the cassation court is required to quash a decision of the first-instance or appellate court, in particular, if the case was examined in the absence of one of the parties who had not been duly notified of the time and venue of the hearing.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22. The applicant complained that the conditions of his detention in the Arbuzynka ITT had been deplorable. This complaint falls to be examined under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

23. The Government considered that the applicant had failed to exhaust the domestic remedies available to him under Ukrainian law before lodging his application with the Court. They submitted that he could have addressed his concerns to the prosecutor supervising the detention facilities. Once having the prosecutor’s conclusion on the inadequacy of the conditions of detention in the Arbuzynka ITT, the applicant could have relied on it in substantiation of his claim for damages. The Government pointed out in this connection that the applicant’s claim for damages did not in fact concern the conditions of his detention. Accordingly, the domestic courts had not been in a position to examine that issue.

24. In the alternative, the Government submitted that the applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. According to them, had the applicant considered that he had no effective domestic remedies to exhaust, he should have introduced this complaint before the Court within six months from the date of his release, 1 April 2004.

25. The applicant did not submit any comments in reply to the Government’s objections.

26. The Court notes that in a number of cases against Ukraine concerning complaints of inappropriate conditions of detention, it has rejected the Government’s arguments that the applicants had to exhaust domestic remedies by applying to the prosecutor or the courts seeking protection of their rights. The Court considered that there had been no grounds for assuming that the use of those remedies could effectively address the applicants’ issues (see, for example, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Znaykin v. Ukraine, no. 37538/05, §§ 42-43, 7 October 2010; and Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, §§ 30-31, 16 February 2012). Accordingly, where the applicants failed to introduce the complaints within the six-month period after the continued situation ceased to exist, the Court rejected such complaints under the six-month rule (see Khayrov v. Ukraine, no. 19157/06, § 64, 15 November 2012, with further references).

27. At the same time, the Court has consistently held that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000-VII).

28. Having regard to the above principle and without prejudice to its findings in earlier similar cases, in the case of Voloshyn v. Ukraine (no. 15853/08, §§ 39-42, 10 October 2013) the Court held that the applicant’s action for damages in respect of his poor conditions of detention in a pre-trial facility could not be placed against him and that it had interrupted the running of the six-month time-limit. In reaching that conclusion, the Court attached weight to the fact that the applicant’s complaint concerned a relatively short period of detention. The Court further noted that the applicant’s civil action for damages, which he had brought after his release, touched upon a number issues which might not have decisively resulted from the structural problems. Lastly, the Court observed that the civil courts had taken cognisance of the applicant’s claim and after examination on them merits dismissed it as unsubstantiated.

29. As in the cited case, the applicant in the present case was detained for a short period of time (two days) and resorted to a retrospective compensatory remedy thereafter. It is noteworthy, however, that in the Voloshyn case the applicant’s allegation of poor conditions of detention was the only complaint raised in his civil claim, whereas the applicant in the present case mentioned that issue only summarily in the context of his other complaints (see paragraph 11 above). Furthermore, even assuming that the applicant’s civil claim in the present case did implicitly raise the issue of the conditions of his detention, unlike in the Voloshyn case the domestic courts never took cognisance of that grievance and the applicant failed to challenge their approach in his appeal or cassation appeal.

30. Accordingly, the Court does not discern any particular circumstances in the present case, which would indicate that the applicant’s civil action interrupted the running of the six-month time-limit.

31. The Court therefore concludes that the applicant’s complaint under Article 3 of the Convention about the conditions of his detention, which he introduced more than four years after his release, should be declared inadmissible under Article 35 §§ 1 and 4 of the Convention for his failure to comply with the six-month rule.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

32. The applicant complained under Article 5 § 1 of the Convention of the unlawfulness of his detention. The provision relied on reads as follows in the relevant part:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

33. The Government contended that the applicant could no longer claim to be a victim of the alleged violation given that the unlawfulness of his two days’ detention had been acknowledged by the domestic courts and that he had received a reasonable pecuniary compensation in that regard.

34. The applicant disagreed. He submitted that he had not received an appropriate and sufficient redress for the violation of his rights under Article 5 § 1 of the Convention given that the authorities had not apologised before him, the law-enforcement officials concerned had never been brought to criminal liability, he had not been compensated for the pecuniary damage suffered, and the compensation in respect of non-pecuniary damage had been too low.

35. The Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-193, ECHR 2006-V).

36. The Court notes that under the Ukrainian legislation it was open for the applicant to claim compensation for damages in respect of his unlawful detention once the criminal proceedings against him had been discontinued for the lack of corpus delicti (see paragraphs 10 and 20 above). In other words, the unlawfulness of his detention was presumed in such circumstances and there was no need to seek a separate judicial declaration to that effect. Furthermore, the appellate court considered it established that the applicant had suffered damages resulting from “illegal actions of law-enforcement officials” (see paragraph 16 above). Accordingly, the Court concludes that in the present case the domestic courts did acknowledge the unlawfulness of the applicant’s detention in substance.

37. The Court further observes that the national courts awarded the applicant compensation in respect of non-pecuniary damage. It remains to be seen whether the compensation in question can be regarded as having provided appropriate and sufficient redress to the applicant. In assessing this, the Court will have regard to all the circumstances of the case, taking into account, in particular, the nature of the Convention violation at stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).

38. The Court notes that, where a violation of Article 5 § 1 is in issue, Article 5 §§ 4 and 5 of the Convention constitutes leges speciales in relation to the more general requirements of Article 13, with Article 5 § 4 providing for a preventive remedy and Article 5 § 5 providing for a compensatory remedy (see Svetoslav Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May 2006, with further references). Thus, where a person is still detained and the lawfulness of his or her detention is concerned, an action for damages against the State, as a general rule, is not an appropriate remedy (see Trepashkin v. Russia, no. 36898/03, § 72, 19 July 2007, with a further reference). In such circumstances the person should be provided with a speedy judicial review of the lawfulness of his detention capable of leading, where appropriate, to his release (see, for example, Raza v. Bulgaria, no. 31465/08, § 76, 11 February 2010).

39. However, in the present case the applicant was released after having spent two days in detention. Accordingly, there are no reasons to consider the retrospective compensatory remedy pursued by him as inappropriate.

40. The Court notes that the domestic courts awarded the applicant compensation equivalent to about EUR 750 in respect of non-pecuniary damage he suffered on account of his unlawful criminal prosecution and detention.

41. The Court reiterates in this connection that the question whether the applicant received reparation for the damage caused - comparable to just satisfaction as provided for under Article 41 of the Convention - is an important issue (see, among other authorities, Shilbergs v. Russia, no. 20075/03, § 72, 17 December 2009). When determining it, the Court will have regard to its own practice in similar cases. This does not imply that in a situation where the domestic authorities awarded a sum to the applicant with a view to redressing the breach found, such sum must correspond to the Court’s award. The compensation which is lower than the amount the Court would itself award may still be considered reasonable, provided that the relevant decision of the domestic courts is consonant with the legal tradition and standard of living in the country concerned and is speedy, reasoned and executed quickly. The level of just satisfaction granted at national level must nevertheless not be manifestly inadequate in the particular circumstances of the case (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 78-83 and 97, ECHR 2006-V).

42. The Court will determine whether the amount of the compensation awarded to the applicant in the present case is comparable to that it awarded itself in respect of similar violations in other cases against Ukraine.

43. The Court notes that in the case of Malyk v. Ukraine (no. 37198/10, 29 January 2015) it awarded EUR 2,000 in respect of the violations of the applicant’s rights under Article 5 §§ 1 and 4 of the Convention. Namely, the violations concerned the unlawful detention of the applicant for ten days and the lack of a speedy judicial review of its lawfulness.

44. In the case of Gal v. Ukraine (no. 6759/11, 16 April 2015) the applicant was awarded EUR 4,500 in respect of his unlawful detention for a total of ninety-nine days. The Court also found a violation of Article 5 §§ 1 and 3 in this case on account of the delayed habeas corpus proceedings.

45. Furthermore, the Court found violations of Article 5 §§ 1, 3 and 4 of the Convention in the case of Orlovskiy v. Ukraine (no. 12222/09, 2 April 2015), including in respect of the unlawfulness of the applicant’s detention for twenty-seven days. The Court’s award in respect of non-pecuniary damage was EUR 4,500.

46. The compensation awarded to the applicant at the domestic level in the present case is lower than in the cases cited above. However, given the short duration of his detention (two days), the Court does not consider it to be manifestly inadequate. Thus, the applicant received EUR 375 for each day spent in detention. Furthermore, the compensation proceedings were conducted with the requisite promptness: it took slightly over two years for the courts of three levels of jurisdiction to adjudicate on the applicant’s claim. Lastly, the applicant has never alleged that the payment did not take place or was delayed.

47. As regards the applicant’s complaint of the authorities’ failure to compensate him for the pecuniary damage suffered, the Court agrees with the domestic courts’ findings and reasoning (see paragraph 16 above).

48. In view of the foregoing, the applicant should be considered as having lost his victim status in relation to this complaint. It must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

49. The applicant complained that he had not been sufficiently compensated for the violation of his right to liberty. He relied on Article 5 § 5 of the Convention which reads as follows:

“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

50. The Government considered that their objection as regards the admissibility of the applicant’s complaint under Article 5 § 1 of the Convention on the ground of his loss of victim status was equally applicable to his complaint under Article 5 § 5.

51. The applicant maintained that the compensation he had received in respect of non-pecuniary damage was too low and that his claim for compensation in respect of pecuniary damage had been wrongly rejected. He therefore argued that he had not had an enforceable right to compensation contrary to Article 5 § 5 of the Convention.

52. The Court reiterates that the right not to be deprived of one’s liberty “save in accordance with a procedure prescribed by law” and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see, for example, Khadisov and Tsechoyev v. Russia, no. 21519/02, § 151, 5 February 2009). Paragraph 1 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter.

53. As the Court has held above, the violation of the applicant’s right under Article 5 § 1 was acknowledged and duly redressed at the national level. However, the outcome of the compensation proceedings brought by him has not been, and could not be, analysed at the domestic level from the standpoint of Article 5 § 5 of the Convention.

54. Accordingly, the Court does not share the Government’s position regarding the applicability of their objection to this complaint too.

55. At the same time, the Court considers that the applicant’s complaint Article 5 § 5 of the Convention should be rejected as manifestly ill-founded.

56. The Court reiterates that Article 5 § 5 of the Convention is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012, with further references).

57. The Court further notes that Article 5 § 5 does not entitle the applicant to a particular amount of compensation (see, for example, Damian-Burueana and Damian v. Romania, no. 6773/02, § 89, 26 May 2009).

58. The Court has already analysed the adequacy of the compensation awarded to the applicant in the present case for his unlawful detention and found it to be reasonable and prompt (see paragraph 46 above).

59. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with the Article 35 § 4.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE FAIRNESS OF THE COMPENSATION PROCEEDINGS

60. The applicant also complained under Article 6 § 1 of the Convention about his inability to participate in the hearing at the appellate court. The relevant provision reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

61. The Court 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

62. The applicant complained that he had been informed of the hearing at the Mykolayiv Regional Court of Appeal with a delay and could not therefore attend it. He observed that the opposing parties had participated in that hearing. Accordingly, the applicant contended that the principle of equality of arms had not been respected.

63. The Government admitted that the hearing in question had taken place in the applicant’s absence, but with the participation of the defendants. However, they argued that the applicant had not been placed in a disadvantageous situation vis-à-vis his opponents, as he had been able to present all his arguments in person before the first-instance court and later in his appeal. The Government observed in that connection that the applicant’s appeal had not in fact contained any new arguments.

64. The Court reiterates that Article 6 of the Convention does not guarantee the right to personal presence before a civil court but rather a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 of the Convention leaves to the State a free choice of the means to be used in guaranteeing litigants these rights. Thus, the questions of personal presence, the form of the proceedings - oral or written - and legal representation are interlinked and must be analysed in the broader context of the “fair trial” guarantee of Article 6 of the Convention. The Court should establish whether the applicant, a party to the civil proceedings, had been given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent. From the Convention standpoint, an applicant does not need to show that his absence from a hearing resulted in actual prejudice or affected the outcome of the proceedings, for such a requirement would deprive the guarantees of Article 6 of their substance. Finally, the Court reiterates that, in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, it must consider the proceedings as a whole, including the decision of the appellate court (see Gankin and Others v. Russia, nos. 2430/06 et seq., § 25, 31 May 2016, containing numerous other case-law references).

65. The Court has also held that Article 6 of the Convention cannot be construed as providing for a specific form of service of court mail (see Orams v. Cyprus (dec.), no. 27841/07, 10 June 2010). Nor are the domestic authorities required to provide a perfectly functioning postal system (see Zagorodnikov v. Russia, no. 66941/01, § 31, 7 June 2007). However, the requirement of equality of arms would be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see Zagorodnikov, cited above, § 30).

66. Turning to the present case, the Court notes that the civil proceedings in question involved three levels of jurisdiction, with the court of second instance being called upon to examine a case as to both the facts and the law, and the court of cassation instance to examine points of law. Accordingly, the applicant should have been afforded an opportunity to explain orally to the appellate court the moral damage which his detention entailed for him in terms of distress and anxiety. The essentially personal nature of his experience, and the determination of the appropriate level of compensation, required that he be heard (see and compare with Göç v. Turkey [GC], no. 36590/97, § 51, ECHR 2002-V).

67. The Court observes that, under the Ukrainian Code of Civil Procedure, the appellate court was required to inform the applicant of its hearing in advance by registered post. Furthermore, it should have adjourned its hearing given the applicant’s absence and the lack of any evidence that he had been duly notified of that hearing (see paragraph 21 above). This was not done. The Court is therefore not persuaded that the Mykolayiv Regional Court of Appeal discharged its obligation to secure the applicant’s presence at the hearing (compare with Mokrushina v. Russia, no. 23377/02, § 21, 5 October 2006, and Slyusar v. Ukraine, no. 34361/06, §§ 32-34, 8 March 2012). Nor did the applicant have the opportunity to comment on the opposing parties’ appeals, which he had received too late.

68. The above deficiency in the appellate proceedings could have been remedied at the cassation level, as the Supreme Court was required to quash the decision in question and remit the case for fresh examination given the seriousness of the irregularity (see paragraph 21 above). Although the applicant brought the issue to the attention of the cassation court in his appeal on points of law, it was rejected without any reasoning in that regard (see paragraphs 18 and 19 above).

69. The Court therefore considers that the principle of equality of arms guaranteed by Article 6 § 1 of the Convention was not respected in the present case.

70. There has therefore been a violation of this provision.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

71. The applicant further complained under Article 6 § 1 of the Convention about the length of the compensation proceedings. He also complained under Article 1 of Protocol No. 1 about the authorities’ failure to reimburse him the money he had paid to Mr Ts. and to return him the car which they had impounded.

72. 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 or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

73. 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

74. The applicant claimed 17,355.37 euros (EUR) in respect of pecuniary and EUR 20,000 in respect of non-pecuniary damage.

75. The Government contested the above claims as exorbitant and unsubstantiated.

76. The Court does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects this claim; however, it awards the applicant EUR 900 in respect of non-pecuniary damage.

B. Costs and expenses

77. The applicant also claimed EUR 5,000 for the costs and expenses incurred in the domestic proceedings and before the Court.

78. The Government contested this claim as not supported by any documents.

79. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses.

C. Default interest

80. The Court considers it appropriate that the default interest rate 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 complaint under Article 6 § 1 of the Convention concerning the unfairness of the civil proceedings 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

(a) that the respondent State is to pay the applicant, within three months, EUR 900 (nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin Faris Vehabović
Acting Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> LOPUSHANSKYY v. UKRAINE - 27793/08 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2017] ECHR 118 (02 February 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/118.html Cite as: ECLI:CE:ECHR:2017:0202JUD002779308, CE:ECHR:2017:0202JUD002779308, [2017] ECHR 118