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FIFTH
SECTION
CASE OF ZHUZHA v. UKRAINE
(Application
no. 595/08)
JUDGMENT
STRASBOURG
6 October
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Zhuzha v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 595/08) 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 Viktor Georgiyevich Zhuzha (“the
applicant”), on 5 December 2007.
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.
- On
12 July 2010 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance
with Protocol No. 14, the application was allocated to a
Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in
Dnipropetrovsk.
- On
9 March 1995 he instituted defamation proceedings in the
Amur-Nyzhnyodniprovskyy District Court of Dnipropetrovsk (“the
District Court”) against Mrs M., a local official.
- On
27 March 1996 the court returned the applicant’s claim
unexamined. On 19 September 1996 it also returned unexamined the
applicant’s appeal against the above ruling.
- On
4 May 1998, following the objection lodged by the Deputy Head of the
Supreme Court, the Dnipropetrovsk Regional Court quashed the ruling
of 27 March 1996 and remitted the case for fresh examination.
- On
19 October 1999 the District Court delivered a judgment. On
20 December 1999 the Regional Court extended the time-limits for
the applicant to lodge an appeal in cassation against the above
judgment, quashed it and remitted the case for fresh examination.
- On
15 September 2006 the District Court partly allowed the applicant’s
claim and ordered Mrs M. to pay him certain amounts in non pecuniary
damage.
- On
10 October 2006 the applicant appealed against the above judgment. On
19 October 2006 the Court of Appeal requested him to rectify the
appeal in accordance with the procedural requirements. Following
that, on 17 January 2006 it rejected the appeal as unsubstantiated.
-
On 17 March 2007 the applicant appealed in cassation. On 5 April 2007
the Supreme Court requested him to rectify the appeal in cassation in
accordance with the procedural requirements. Following that, on
26 June2007 it rejected the appeal in cassation as
unsubstantiated.
- In
the course of the proceedings the applicant several times specified
his claim. Eight hearings were adjourned due to the applicant’s,
his representative’s or both parties’ failure to appear
or following the applicant’s representative’s request,
which protracted the proceedings by eight and a half months
approximately.
- Thirteen
further hearings were adjourned due to the respondent’s or her
representative’s failure to appear, absence of the judge or for
unspecified reasons. Between 23 October 2003 and 14 July 2006 the
proceedings were suspended due to the respondent’s sickness.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1
and 13 of the Convention about the length of the proceedings in his
case. The Court considers that the above complaint falls to be
examined solely under Article 6 § 1 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 ...”
- The
Government contested that argument stating that the case had been
complex and that the applicant had contributed to the overall length
of the proceedings.
- 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. However, in assessing the reasonableness of the
time that elapsed after that date, account will be taken of the state
of proceedings at the time. Between 11 September 1997 and 4 May 1998
no proceedings were pending (see, for instance, Lyutov
v. Ukraine, no. 32038/04, §
24, 11 December 2008). The proceedings thus lasted for nine
years one month and twenty two days.
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).
19. Turning
to the circumstances of the case, the Court considers that neither
the complexity of the case nor the applicant’s conduct, who
somewhat contributed to the length of the proceedings (see paragraphs
8 and 10-12 above), cannot explain the overall duration of the
proceedings. On the other hand, the Court considers that the main
delays were caused by the District Court (see paragraphs 8, 9 and 13
above) and by two remittals of the case for fresh examination (see
paragraphs 7 and 8 above). It thus concludes that the main
responsibility for the protracted length of the proceedings rested
with the State.
- 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).
- 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
22. The
applicant also complained under Articles 6 § 1 and 13 of the
Convention about the unfavourable outcome of the proceedings and lack
of access to and of public hearings before the Supreme Court.
23. 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.
- It
follows that this part of the application must be declared
inadmissible as being 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, costs and expenses
- The
applicant claimed 35,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have
sustained non-pecuniary damage on account of the violation found.
Ruling on an equitable basis, it awards him EUR
1,700 under that head.
B. 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 EUR 1,700 (one thousand seven 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 6 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
