FIFTH SECTION
CASE OF NEKHANCHENKO v. UKRAINE
(Application no. 18255/05)
JUDGMENT
STRASBOURG
28 October 2010
This judgment is final but it may be subject to editorial revision.
In the case of Nekhanchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 5 October 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 18255/05) 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 Vladimir Semyonovich Nekhanchenko (“the applicant”), on 6 May 2005.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3. On 19 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application is assigned to a Committee of three Judges.
THE FACTS
4. The applicant was born in 1948 and lives in Zaporizhzhya.
A. The first set of proceedings
5. In October 1995 the applicant lodged a claim with the Ordzhonikidzevskyy Court against the local prosecutor’s office and the police department for compensation for pecuniary and non-pecuniary damage. In the course of the proceedings he also lodged a similar claim against the State Treasury.
6. On 22 October 1998 the court delivered a judgment in the applicant’s case. On 21 January 1999 the Zaporizhzhya Regional Court quashed it and remitted the case for fresh consideration. On 19 February 1999, following the protest of the President of the Regional Court, the Presidium of the same court quashed the ruling of 21 January 1999.
7. On 22 April 1999 the Regional Court quashed the judgment of 22 October 1998 and remitted the case for fresh consideration by the first instance court.
8. On 9 February 2004 the Ordzhonikidzevskyy Court allowed in part the applicant’s claims and awarded him certain amounts of compensation.
9. On 23 November 2004 the Zaporizhzhya Regional Court of Appeal quashed the judgment and remitted the case for fresh consideration. On 12 December 2007 the Supreme Court quashed the ruling of 23 November 2004 and remitted the case to the Court of Appeal for fresh consideration.
10. On 4 March 2008 the Court of Appeal quashed the judgment of 9 February 2004 and rejected the applicant’s claim as unsubstantiated.
11. On 21 May 2008 the Supreme Court refused to grant leave for the applicant’s appeal in cassation.
12. According to the Government, in the course of the proceedings the applicant amended his claim and appeals on ten occasions. The courts adjourned twelve hearings following the applicant’s requests or due to his failure to appear, which resulted in several delays of the overall duration of one and a half years. Some thirteen hearings were also adjourned due to the respondents’ failure to appear, absence or sickness of a judge or because the courts needed to collect additional evidence.
B. The second and third sets of proceedings
13. In October 1990 the applicant instituted civil proceedings before the domestic courts against the local police department, seeking compensation for damages. These proceedings ended on 19 October 1994 with the court decision partly granting the applicant’s action.
14. In 1989-1999 the applicant unsuccessfully sought institution of criminal proceedings against certain police officers, who had allegedly taken some of his personal belongings and inflicted light bodily injuries on him.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS
15. Relying on Article 6 § 1 of the Convention, the applicant complained that the length of the first set of proceedings had not been reasonable. The above provision reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
16. The Government contested that argument.
17. The Court notes that the period to be taken into consideration began on 11 September 1997, the date of the entry of the Convention into force in respect of Ukraine. However, in assessing the reasonableness of the time elapsed after that date, account will be taken of the fact that at that time the proceedings had been pending since October 1995. The final decision in the case was given on 21 May 2008. The proceedings thus lasted for about ten years and eight months for three levels of jurisdiction.
A. Admissibility
18. 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
19. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
20. 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 paragraph 12 above), cannot explain their overall length. It finds that substantial delays, mainly caused by the lengthy consideration of the case by the Ordzhonikidzevskyy Court (see paragraphs 7-8 above) and by the Supreme Court (see paragraph 9 above) and by the repeated adjournment of the hearings, were attributable to the domestic courts. The Court concludes, therefore, that the main responsibility for the protracted length of the proceedings rested with the State.
21. 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, for instance, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006; and, more recently, Chubakova v. Ukraine, no. 17674/05, § 16, 18 February 2010).
22. 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. It 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 violation of Article 6 § 1 of the Convention.
II. REMAINDER OF THE APPLICATION
23. Relying on Articles 6 § 1, 13 and 17 of the Convention and Article 1 of Protocol No. 1, the applicant also complained about the unfavourable outcome of the first set of proceedings and about the outcome and length of the second and third sets of proceedings.
24. 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.
25. It follows that this part of the application must be declared inadmissible for being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
26. 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
27. The applicant claimed 6,000 euros (EUR) for non-pecuniary damage. The Government contested that amount.
28. The Court considers that the applicant must have sustained some non-pecuniary damage as a result of the violation found. Ruling on an equitable basis, it awards him EUR 2,400 under this head.
B. Costs and expenses
29. The applicant claimed EUR 2,000 for the expenses incurred in the domestic proceedings. He also claimed 267.92[1] Ukrainian hryvnias (UAH) for correspondence expenses in the proceedings before the Court, having provided postal receipts for the total amount of UAH 176,66[2].
30. The Government invited the Court to reject the above claims as unsubstantiated.
31. 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 were reasonable as to quantum. In the present case, regard being had to the above criteria, the Court awards the applicant EUR 17 for correspondence expenses.
C. Default interest
32. 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 applicant’s complaint under Article 6 § 1 of the Convention about the length of the first set of proceedings admissible and the remainder of the complaints 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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 17 (seventeen euros) for costs and expenses, plus any tax that may be chargeable on the above amounts, 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsRait Maruste
Deputy Registrar President
[1]. About EUR 25
[2]. Around EUR 17
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