FIFTH SECTION

CASE OF PONOMARENKO v. UKRAINE

(Application no. 1071/08)

JUDGMENT

STRASBOURG

6 October 2011

This judgment is final but it may be subject to editorial revision.

In the case of Ponomarenko 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
1.  The case originated in an application (no. 1071/08) 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 Ivan Ivanovich Ponomarenko (“the applicant”), on 7 December 2007.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mrs Valeria Lutkovska, of the Ministry of Justice.
3.  On 10 September 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
4.  The applicant was born in 1938 and lives in Dnipropetrovsk.
5.  On 12 July 1999 he lodged a claim with the Zhovtnevyy District Court of Dnipropetrovsk (“the District Court”) against the local authorities and his sister in a dispute over inheritance.
6.  On 17 August 2004 the District Court returned the applicant’s claim unexamined for his failure to attend the hearing. On 1 December 2004 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) quashed that decision and remitted the case for fresh examination on the ground that the applicant had been absent from the hearing for a valid reason (sickness).
7.  On 13 November 2006 the District Court partially allowed the applicant’s claim.
8.  On 7 December 2006 the applicant appealed against the above judgment. On 21 December 2006 the Court of Appeal requested him to lodge the appeal, by 15 January 2007, in accordance with the procedural formalities. Following that, on 25 April 2007 the Court of Appeal rejected the appeal as unsubstantiated.
9.  On 10 July 2007 the Supreme Court upheld the decisions of 13 November 2006 and 25 April 2007.
10.  According to the Government, the District Court adjourned six hearings due to the applicant’s and other parties’ failure to appear or following the applicant’s requests. This protracted the proceedings to approximately nine months. The applicant disagreed stating that he could not attend only four hearings, due to his sickness. The above court further adjourned thirty three hearings, mainly due to the respondent’s failure to attend the hearings or following their requests, due to the absence of a judge, the need to collect additional documents or for unspecified reasons.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
11.  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 ...”
12.  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 by failing to attend several hearings and by lodging various procedural petitions.
13.  The period to be taken into consideration began on 12 July 1999 and ended on 10 July 2007. It thus lasted eight years for three levels of jurisdiction.
A.  Admissibility
14.  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
15.  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).
16.  Turning to the circumstances of the case, the Court considers that the complexity of the case and the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraphs 8 and 10 above), cannot explain their overall duration. On the other hand, the Court finds that the protraction of the proceedings was mainly caused by the lengthy consideration of the case by the District Court and by thirty three adjournments of the hearings (see paragraphs 5-7 and 10 above). The Court concludes, therefore, that the main responsibility for the lengthy duration of the proceedings rests with the State.
17.  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; Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; and Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006).
18.  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.  THE REMAINING COMPLAINT
19.  The applicant also complained under Article 13 of the Convention about the unfairness and unfavourable outcome of the proceedings.
20.  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.
21.  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
22.  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
23.  The applicant stated that he had suffered pecuniary and non-pecuniary damage on account of the actions of the domestic courts, without further specification.
24.  The Government left the matter to the Court’s discretion.
25.  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, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him 1,100 euros (EUR) under that head.
B.  Costs and expenses
26.  The applicant made no claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum under this head.
C.  Default interest
27.  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
1.  Declares the complaint concerning the excessive length of the 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 1,100 (one thousand one 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;

4.  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