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FIFTH
SECTION
CASE OF GONCHAROV v. UKRAINE
(Application
no. 7867/06)
JUDGMENT
STRASBOURG
10
December 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 Goncharov 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,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 7867/06) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Pavel Vasilyevich Goncharov (“the
applicant”), on 4 February 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
12 September 2006 the
Court decided to give notice of the application 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 1953 and lives in Artemivsk.
- On
16 April 1998 the applicant instituted proceedings in the Artemivsk
Town Court against the company A., his former employer, and the State
Pension Fund, seeking recalculation of his salary and pension and
recovery of salary and pension arrears.
- On
5 May 1999, further to the applicant’s request, the court
ordered an expert examination as regards the accuracy of the
calculation of the applicant’s salary and pension and suspended
the proceedings awaiting the results of the examination.
- On
18 November 1999 the court, further to the applicant’s request,
cancelled the examination and resumed the proceedings.
- During
the period from 18 November 1999 to 8 April 2002 no court hearings
were held in the case.
- On
7 February 2003 the court rejected the applicant’s claims as
not based on the relevant law.
- On
6 March 2003 the applicant appealed.
- On
13 March 2003 the first-instance court allowed the applicant until 25
March 2003 to rectify shortcomings in his appeal.
- On
21 March 2003 the applicant submitted his rectified appeal.
- On
12 June 2003 the Donetsk Regional Court of Appeal upheld the judgment
of 7 February 2003.
- On
27 August 2003 the applicant appealed in cassation.
- By
a ruling of 2 September 2003 the first-instance court returned the
appeal in cassation to the applicant as lodged out of time.
- On
11 September 2003 the applicant appealed against that ruling.
- Further
to the court’s instructions he rectified shortcomings in that
appeal and resubmitted it on 18 September 2003.
- On
30 October 2003 the Donetsk Regional Court of Appeal quashed the
ruling of 2 September 2003.
- On
13 November 2003 the first-instance court granted the applicant
extension of the time-limit for lodging his appeal in cassation.
- On
9 September 2005 the Supreme Court rejected the applicant’s
appeal in cassation as unsubstantiated.
- Of
twenty court hearings six were adjourned at the respondent’s
request or due to its representative’s failure to appear, eight
following the applicant’s requests and due to the introduction
of additional claims.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- Relying
on Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1 the applicant complained about the length of the
proceedings. The Court, which is master of the characterisation to be
given in law to the facts of the case, considers that the applicant’s
complaint falls to be examined under Article 6 § 1 of the
Convention, which reads, in so far as relevant, as follows:
Article 6 § 1
“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
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
Government submitted that the case was complex and there were no
substantial delays attributable to the domestic authorities, while
the applicant contributed to the protracted length of the proceedings
by requesting adjournments of the hearings and lodging his appeals
out of time.
- 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).
- Turning
to the circumstances of the present case, the Court notes that the
period to be taken into consideration began on 16 April 1998 and
ended on 9 September 2005. It thus lasted for about seven years and
five months before the courts at three levels of jurisdiction.
- The
Court notes that the applicant’s case was of no particular
factual or legal complexity and the Government did not put forward
any explanation for the delays of two years and seven months and two
years during the periods from 18 November 1999 to 8 April 2002 and
from 13 November 2003 to 3 September 2005.
- Although
the applicant might have caused some protraction of the proceedings,
the Court is of the view that the primary responsibility for the
delays in the proceedings rests with the courts. The Court considers
that the length of the proceedings was excessive and there has
accordingly been a breach of the “reasonable time”
requirement of Article 6 § 1.
II. OTHER COMPLAINTS
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention about the outcome of the proceedings and that they were
unfair. He also complained of a violation of Article 1 of Protocol
No. 1 on account of the outcome of the proceedings. He also
complained that he had been discriminated against on account of the
outcome of the proceedings.
- 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 and 4 of 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 304,862.46 Ukrainian hryvnias (UAH)
in respect of pecuniary damage and UAH 50,000
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 that claim. On
the other hand, making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicant EUR 1,200 for non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 1,000
for costs and expenses without any further specification.
- The
Government contested the 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
rejects the claim for costs and expenses.
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 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 1,200 (one
thousand and two hundred euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, to be converted into national
currency 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 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
