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FIFTH
SECTION
CASE OF
MARUTSENKO v. UKRAINE
(Application
no. 24959/06)
JUDGMENT
STRASBOURG
31 May 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Marutsenko 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 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24959/06) 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 Igor Vadimovich Marutsenko (“the applicant”),
on 24 June 2005.
- The
applicant was represented by Mr I. Pogasiy, a lawyer practising in
Kirovohrad. The Ukrainian Government (“the
Government”) were represented by their Agent, Ms V. Lutkovska,
of the Ministry of Justice.
- On
25 January 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 1967 and lives in Kirovohrad.
- On
21 June 2005 the applicant lodged a civil claim with the Kirovskyy
District Court of Kirovohrad (“the Kirovskyy Court”)
against the Military Unit A-1405 for pecuniary and non-pecuniary
damage.
- On
21 February 2006 the court decided to discontinue the proceedings as
a result of the applicant’s failure to attend the hearings.
- On
19 September 2007 the applicant requested an extension of time to
lodge the appeal against the above ruling and submitted that he had
become aware of the impugned ruling in July 2007.
- On
24 October 2007 the Kirovohrad Regional Court of Appeal quashed the
ruling of 21 February 2006. It remitted the case for examination by
the first-instance court, having found that the applicant had not
been duly notified of the time and date of the hearings. The Court of
Appeal ruled that the first-instance court had erred in its decision
to discontinue the proceedings.
- On
18 July 2008 the Kirovskyy Court considered that it was not competent
to deal with the case because it lacked jurisdiction ratione
materiae. It discontinued the civil proceedings and held that the
case should be examined within the framework of the administrative
proceedings.
- Following
examination of the applicant’s appeal on its merits, on
24 December 2008 the Court of Appeal quashed the ruling of 18
July 2008. It held that the first-instance court had erred in its
decision to discontinue the proceedings and considered that the case
should be examined within the framework of civil proceedings. The
Court of Appeal remitted the case for examination to the Kirovskyy
Court.
- On
25 February 2009 the Kirovskyy Court decided to discontinue the
proceedings because of the applicant’s failure to attend the
hearings.
- On
24 June 2009 the Court of Appeal quashed the ruling of the
Kirovskyy Court on the ground that the applicant had not been duly
notified of the time and date of the hearings and remitted the case
for examination to the first-instance court.
- On
16 June 2010 the Kirovskyy Court for the third time decided to
discontinue the proceedings because of the applicant’s repeated
failure to attend the hearings. The applicant did not lodge an appeal
against that decision.
- In
the course of the proceedings sixteen hearings were adjourned, out of
which three times because of the applicant’s failure to attend
the hearings, once because of the failure of the respondent’s
representative and five times because of the parties’ failure
to attend the hearings. On seven occasions the hearings were
adjourned for a total period of about nine months because of the
judge’s or secretary’s absence or for technical reasons.
The applicant adjusted his claims once.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings was
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 submitted that the application of 24 June 2005 lodged by
the applicant with the Court was not clearly reasoned and did not
comply with the admissibility criteria envisaged by Article 35 §
3 of the Convention.
- The
Court notes that the complaints of excessive length of the civil
proceedings and lack of effective remedies in this respect were first
raised by the applicant in his duly completed and signed application
of 27 October 2005 and further maintained in his submissions of 4
October 2009. The Court therefore dismisses the Government’s
objection.
- 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
applicant complained that the length of the proceedings was
excessive.
- The
Government contested this complaint. They submitted that the delays
in the proceedings had been caused by the behaviour of the parties,
in particular by their failure to attend the hearings and to lodge
appeal in due time.
- 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 facts of the present case, the Court notes that the period to
be taken into consideration began on 21 June 2005 and ended on 16
June 2010. It has thus lasted approximately five years at two levels
of jurisdiction.
- The
Court notes that the applicant’s claim for recovery of
compensation for pecuniary and non-pecuniary damage from a military
unit did not raise a legal or factual issue of any particular
complexity.
- The
Court further observes that since the introduction of the applicant’s
claim before the domestic courts in June 2005 it was never considered
on its merits. It finds that significant delays in the proceedings
were caused by the repeated remittals of the case for fresh
examination because of the first-instance court’s failure to
comply with the procedural requirements, namely failure to notify the
applicant about the date and time of the hearings, as it was stated
in the rulings of the Court of Appeal (see paragraphs 8, 10 and 12
above). It considers that the applicant’s behaviour alone (see
paragraphs 13 and 14 above) cannot justify the length of the
proceedings in question.
- The
Court considers that the proceedings were of some importance to the
applicant. Although the compensation claimed by the applicant was not
his main source of income and no specific circumstances called for
urgent examination of his claim, this did not exempt the courts from
ensuring that the reasonable time requirement of Article 6 was
complied with.
- In
the light of the circumstances of the present case, the
Court concludes that the State authorities bear the primary
responsibility for the excessive length of the proceedings in the
present case.
- 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
Mkrtchyan v. Ukraine, no. 21939/05, §§19, 22-23, 20
May 2010).
- 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, it holds 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 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained of lack of effective remedies in respect of his
complaint concerning the length of the proceedings. He relied on
Article 13 of the Convention, which reads, in so far as
relevant, as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity. ”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to its well-established case-law on the matter, the Court
finds that in the present case there has been a violation of Article
13 of the Convention on account of the lack of an effective remedy in
respect of the applicant’s complaint under Article 6 § 1
of the Convention about the length of the proceedings (see, for
example, Efimenko v. Ukraine, no. 55870/00, § 64,
18 July 2006 and, for a recent authority, Gutka v. Ukraine,
no. 45846/05, § 34, 8 April 2010).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that, by failing to examine his case within the
reasonable time, the State violated his right to peaceful enjoyment
of property. He relied in this respect on Article 1 of Protocol No.
1, which reads, in so far as relevant, as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.”
- 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.
- Having
regard to its finding under Article 6 § 1 (see paragraph 28
above), the Court considers that it is not necessary to examine
whether, in this case, there has been a violation of Article 1 of
Protocol No. 1 (see Zanghì v. Italy,
19 February 1991, § 23, Series A no. 194 C;
and Efimenko v. Ukraine, no. 55870/00, § 68, 18
July 2006).
IV. OTHER COMPLAINTS
- The
applicant complained under Article 6 § 1 of unfairness of the
proceedings and of lack of access to a court. He also complained of a
violation of Article 1 of Protocol No. 1 in that the State
authorities had allegedly misappropriated his property and had not
provided him with compensation for it.
- 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.
V. 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 10,019.04 Ukrainian hryvnias (UAH)
in respect of pecuniary damage and 5,000 euros in respect of
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 this claim.
However, ruling on equitable basis, it awards the applicant EUR 1,800
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 3,800
for the costs and expenses incurred before the domestic courts and
UAH 18,087.32
for those incurred before the Court.
- The
Government contested these claims.
- Regard
being had to the documents in its possession and to its case-law, the
Court rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 1,506
for the proceedings before the Court, covering his expenses for legal
assistance and correspondence with the Court.
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 applicant’s complaint
concerning the alleged excessive length of the proceedings and of
lack of an effective remedy in that respect admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there is no
need to examine separately the complaint under Article 1 of Protocol
No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 1,800 (one thousand eight hundred euros) in respect of
non-pecuniary damage and EUR 1,506 (one thousand five hundred and six
euros) for 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 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
