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FIFTH
SECTION
CASE OF LOSHENKO v. UKRAINE
(Application
no. 11447/04)
JUDGMENT
STRASBOURG
11
December 2008
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 Loshenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Mark Villiger,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11447/04) 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 Mikhail Pavlovich Loshenko (“the
applicant”), on 5 February 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
6 December 2007 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, Mr Mikhail Pavlovich Loshenko, was born in 1930 and
lives in Kyiv.
- In
1995 the applicant concluded a contract with A., a private bank (“the
Bank”), by which it would invest the applicant’s funds in
the construction of an apartment by JSC “K.” (“the
Construction Company”), to be completed by 30 July 1996.
Pursuant to the provisions of this contract, in the event of a delay
in completion of the construction works, the applicant could claim
late-payment penalties from the Bank.
- As
the Construction Company officially completed the works only on
29 August 1996, on 2 October 1996 the applicant
instituted civil proceedings in the Pechersky District Court of Kyiv
claiming payment from the Bank for delay in completion of the works.
- On
2 December 1996 Judge V. held a hearing. Subsequently Judge
Z., the President of the Pechersky Court at the material time,
withheld the case from Judge V. for unspecified reasons.
- On
27 October 1997 the Bank lodged a counterclaim, alleging
that the promise to pay a penalty for the Construction Company’s
failure to fulfil the work on time had been given by it ultra
vires, and had to be annulled as incompatible with the applicable
banking law.
- On
19 November 1997 Judge Z. pronounced a judgment
dismissing the applicant’s claim and allowing the Bank’s
counterclaim. However, he did not sign this judgment.
- On
27 November 1997 the applicant lodged a cassation appeal
with the Kyiv City Court.
- On
3 December 1997, pursuant to the requirements of the procedural law
in place at the material time, the appeal was forwarded to Judge Z.
to decide on its compliance with procedural formalities.
- In
June 2001 a new appeal procedure was introduced, and the Kyiv City
Court was transformed into the Kyiv City Court of Appeal.
- In
July 2001 Judge Z. was dismissed on disciplinary grounds.
- On
10 December 2001 the Kyiv City Department of Justice
informed the applicant that it had investigated his complaint about
the lengthy consideration of his cassation appeal and discovered that
former Judge Z. had failed to register it and had withheld the
case file from the court’s registry. The Department assured the
applicant that the case would be promptly transferred to the Kyiv
City Court of Appeal for consideration.
- On
7 May 2002 the City Court quashed the judgment of
19 November 1997 as unsigned by the presiding judge and
remitted the case for a fresh consideration.
- On
10 October 2002 the Pechersky Court allowed the applicant’s
claim and dismissed the Bank’s counterclaim. On 24 October 2002
the Bank appealed.
- On
4 December 2002 the Kyiv Court of Appeal reversed the
judgment, having annulled the clause concerning the Bank’s
responsibility for the Construction Company’s delay as
incompatible with the applicable law.
- On
23 December 2002 the applicant appealed in cassation before
the Supreme Court.
- On
16 October 2003 the Supreme Court rejected the applicant’s
request for leave to appeal in cassation.
- On
24 March 2004 Judge Z. was convicted of failure to perform official
duties and sentenced to two years’ imprisonment, suspended. His
criminal case included several episodes, none of which concerned the
applicant’s civil case.
- Subsequently
the applicant unsuccessfully sought to reopen the proceedings,
alleging that a similar complaint by another investor had been upheld
in the investor’s favour.
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...”
A. Admissibility
- The
Government maintained 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. Therefore,
the applicant’s complaints related to the events prior to that
date should be rejected as inadmissible ratione
temporis.
- The
Government further argued that the applicant had failed to exhaust
domestic remedies. In particular, they maintained that the applicant
could have instituted disciplinary proceedings against the judge who
had dealt with his case. They further submitted
that the applicant could have instituted criminal proceedings against
the judge and then lodged a civil claim seeking compensation. Lastly,
they alleged that the applicant was not interested in consideration
of his cassation appeal since he had lodged his complaint only in
2001.
- The
applicant disagreed.
26. The
Court notes that part of the proceedings complained of relates to the
period prior to 11 September 1997, the date on which the Convention
came into force in respect of Ukraine. Therefore, this part of the
application is incompatible ratione
temporis with the provisions of the
Convention, within the meaning of Article 35 § 3 of the
Convention.
- As concerns disciplinary proceedings against judges,
the Court has previously held that this remedy could not be
considered effective for Convention purposes (see Efimenko
v. Ukraine, no. 55870/00, § 49, 18 July 2006).
- The
Court reiterates that the decisive question in assessing the
effectiveness of a remedy concerning a complaint about the length of
proceedings is whether the applicant can raise this complaint before
domestic courts by claiming specific redress; in other words, whether
a remedy exists that could answer his complaints by providing direct
and speedy redress (see Deweer v. Belgium, judgment of
27 February 1980, Series A no. 35, p. 16, § 29). The Court
has also held that a remedy is “effective” if it can be
used either to expedite a decision by the courts dealing with the
case, or to provide the litigant with adequate redress for delays
that have already occurred (see Kudła v. Poland [GC],
no. 30210/96, §§ 157-159, ECHR 2000-XI, and Mifsud
v. France (dec.), [GC], no. 57220/00, § 17, ECHR
2002-VIII).
- The
Court further notes that Ukrainian law does not envisage criminal
responsibility for delaying proceedings.
- Applying
the aforementioned considerations to the instant case, the Court
finds that instituting criminal proceedings against a judge and
seeking compensation from him within the criminal proceedings cannot
be considered as an effective remedy within the meaning of Article 35
§1 of the Convention.
- The
Court considers, in the light of the parties’ submissions, that
the applicant’s complaint raises serious issues of fact and law
under the Convention, the determination of which requires an
examination of the merits. The Court concludes therefore that it
cannot be rejected for non exhaustion of domestic remedies
within the meaning of Article 35 § 1 of the Convention. No
other ground for declaring it inadmissible has been established. It
must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
Court notes that after the date on which the Convention came into
force in respect of Ukraine the proceedings lasted from
11 September 1997 to 16 October 2003, when the Supreme
Court gave a final decision in the applicant’s case. However,
in assessing the reasonableness of the time that elapsed after 11
September 1997, account must be taken of the state of proceedings on
that date (see Miloševiÿ v. “the former Yugoslav
Republic of Macedonia”, no. 15056/02, § 21,
20 April 2006; Styranowski v. Poland, no. 28616/95,
§ 46, ECHR 1998 VIII; and Foti and Others v. Italy,
judgment of 10 December 1982, Series A no. 56, p. 18,
§ 53).
- Therefore,
the overall length of the proceedings in the applicant case was seven
years; the length of the proceedings falling within the Court’s
temporal jurisdiction was six years and one month.
2. Reasonableness of the length of the proceedings
before the domestic courts
- The
Government contested the applicant’s complaint, stating that
there were no significant periods of inactivity attributable to the
State. They maintained that the case had been complex since a third
party was involved in the proceedings. They also submitted that the
case was complex since a forensic examination had been held.
According to the Government, the parties were responsible for the
delays. The Government maintained, lastly, that the length of
proceedings in the applicant’s case was not unreasonable.
- The
applicant disagreed.
- 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 major delay in the
proceedings at issue was caused by the judge’s failure to
register the applicant’s appeal against the judgment of
19 November 1997 in good time. The Government have offered
no satisfactory explanation for that lapse of time, spanning four
years. The Court cannot accept a period of total inactivity lasting
for four years (see Bunkate v. the Netherlands, judgment of 26
May 1993, Series A no. 248 B, p., §§ 20-23).
- The
Court reiterates that it is the role of the domestic courts to manage
their proceedings so that they are expeditious and effective.
However, in the Court’s opinion the national courts did not act
with due diligence.
- 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, and
Blidchenko v. Ukraine, no. 20339/03, 29 November
2007).
- 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 further
complained, under Article 6 § 1 of the Convention, of the
unfairness of the hearings and the outcome of the proceedings and the
lack of professionalism, independence and impartiality of the
domestic judges in handling his dispute. He also invoked Articles 3,
13 and 17 of the Convention, referring to the same facts.
- 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.
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 12,000 US dollars (USD) in respect of pecuniary
damage. He further claimed 4,000 Ukrainian hryvnas
(UAH) in respect of non-pecuniary damage.
- The
Government contested these claims as unsubstantiated.
- 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 equitable basis, it awards the applicant
600 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no separate claims as to costs and expenses.
Therefore, the Court makes no award under that 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
of the Convention concerning the excessive length of the 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 600 (six
hundred euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable on 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 11 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
