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FIFTH
SECTION
CASE OF SMIRNOV v. UKRAINE
(Application
no. 1409/03)
JUDGMENT
STRASBOURG
30 July
2009
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 Smirnov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva,
judges,
Stanislav Shevchuk, ad hoc judge,
and
Stephen Phillips, Deputy Section
Registrar.
Having deliberated in private on 7
July 2009,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 1409/03) 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 Yevgeniy Anatoliyovych Smirnov (“the
applicant”), on 24 October 2002. The applicant was represented
by Mr Belik Valeriy Grigoryevich, a lawyer practising in Mykolaiv.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
10 July 2007 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the civil
proceedings against the Kerch Tax Inspectorate to the Government. It
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
- The
applicant was born in 1958 and lives in the town of Kerch, Ukraine.
- In
February 1999 the Kerch Tax Inspectorate
instituted criminal proceedings against the applicant, who ran a
small business, on a charge of tax evasion and attached his property.
Later, the criminal proceedings against him were terminated on the
ground that his actions did not constitute a criminal offence under
the new criminal law.
- On 17 November 2000 the applicant
instituted civil proceedings against the Kerch Tax Inspectorate
claiming compensation for the pecuniary and non-pecuniary damage
caused to him.
- On 10 August 2001 the Kerch City
Court allowed the applicant's claim in part.
- In September 2001 the defendant
in the case lodged an appeal against that judgment.
- On 11 August 2003 the Court of
Appeal quashed the judgment of 10 August 2001 and remitted the
case for a fresh consideration.
- On 12 December 2003 the Supreme
Court rejected the applicant's appeal in cassation.
- By a judgment of 16 June 2004
the Kerch City Court dismissed the applicant's claim in respect of
non-pecuniary damage. By a ruling adopted the same date the court
terminated proceedings in respect of pecuniary damage.
- On 27 September 2004 the Court
of Appeal quashed the judgment and ruling and remitted the case to
the first-instance court for a fresh consideration.
- On 6 October 2004 the applicant
lodged a cassation appeal against the ruling of 27 September
2004. On 30 August 2007 the Zaporizhzhya Regional
Court of Appeal, acting as a court of cassation, dismissed it.
- In accordance with the ruling of 27 September 2004 the
case was remitted to the first-instance court and the proceedings are
still pending before it.
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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 17 November 2000 and
has not yet ended. It has thus lasted eight years and six months for
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).
- Concerning
the question of the complexity of the present case, the Court
observes that the domestic court mainly had to establish whether the
applicant sustained any pecuniary or non-pecuniary damage and, if so,
the amount of the compensation to be paid. Although the domestic
courts were required to examine a certain amount of documentary
evidence, the nature of the issue before them did not necessitate
prolonged consideration of the applicant's case. Therefore, the Court
concludes that the subject matter of the litigation at issue cannot
be considered particularly complex.
- The
Court notes that the complexity of the case and the applicant's
conduct alone cannot explain the overall length of the proceedings at
issue in the present case. The Court considers that a number of
delays are attributable to the Government. In particular it notes the
remittals of the case for a fresh consideration (see paragraphs 9 and
12 above) and the lengthy period of procedural inactivity in
considering the applicant's appeal in cassation (see paragraph 13
above).
- 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;
Yakymenko v.
Ukraine, no. 19142/03, § 39,
29 May 2008; and Pavlyulynets v.
Ukraine, no. 70767/01, §
53, 6 September 2005).
- 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 finds 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. 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 3,809.43 United States dollars (about EUR 2,834)
and 316,000 Ukrainian hryvnas (UAH, about EUR 29,685) in respect of
pecuniary damage and non-pecuniary damage respectively.
- 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 that 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 also claimed a total amount of UAH 67,401.99 (about EUR
6,332) in respect of his expenses for representation,
postal expenses and other expenses allegedly incurred in both the
domestic and Convention proceedings.
- The
Government contested this claim.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 250 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 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 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 plus
EUR 250 (two hundred and fifty euros) in respect of 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 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
