FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 7690/03
by Ivan Petrovych GONTARENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 29 May 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 21 February 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ivan Petrovych Gontarenko, is a Ukrainian national who was born in 1959 and lives in the city of Poltava. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 April 1998 the applicant instituted proceedings against the local housing authority (житлово-експлуатаційна дільниця № 8), seeking his reinstatement and compensation for salary arrears and non-pecuniary damage.
On 27 October 1998 the Leninsky District Court of Poltava (hereinafter “the Leninsky Court”) found against the applicant.
On 17 December 1998 the Poltava Regional Court (hereinafter “the Regional Court”) upheld this decision.
On 7 September 1999 the Presidium of the Regional Court, following the protest of the Public Prosecutor lodged upon the applicant’s request (протест заступника прокурора Полтавської області), quashed all previous decisions and remitted the case for a fresh consideration on the ground that the first instance court’s reasoning was insufficient.
On 27 June 2000 the Leninsky Court found against the applicant.
On 27 July 2000 the Regional Court quashed this decision stating that the first instance court had failed to give appropriate consideration of the facts. The case was remitted for a fresh consideration to the Kyivsky District Court of Poltava (hereinafter “the Kyivsky Court”).
On 3 July 2002 the Kyivsky Court found against the applicant.
On 15 October 2002 and 19 August 2003 the Poltava Regional Court of Appeal and the Supreme Court, respectively, upheld this decision.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings in his case. He also complained under Article 6 § 1 of the Convention about the unfairness and outcome of the proceedings.
THE LAW
1. 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...”
The Government contested that argument and submitted that the domestic courts considered the case without substantial delays.
The applicant disagreed and stated that the proceedings had not been conducted with sufficient diligence.
The Court notes that the proceedings were instituted on 7 April 1998 and ended on 19 August 2003, out of which the nine-month-period when no proceedings were pending before the judgment that had become res judicata was quashed following the protest, must be deduced (see Yemanakova v. Russia, no. 60408/00, § 41, 23 September 2004, and Efimenko v. Ukraine, no. 55870/00, § 51, 18 July 2006). The proceedings, therefore, lasted four years and seven months for three levels of jurisdiction.
The Court recalls that the “reasonableness” of the length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent 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 applicant’s claim was twice remitted for a fresh consideration by the Regional Court following his request for the protest and an appeal. Although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must to some extent accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).
The Court further notes that the protracted length of the proceedings was also due to the conduct of the domestic judicial authorities and re-examination of the case. Although the Court is not in a position to analyse the quality of the case-law of the domestic judicial authorities, it observes that, since remittal is usually ordered because of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003).
At the same time, the Court notes that all the domestic courts examined the applicant’s claim as well as his appeals and a cassation appeal without delays which could be in breach of “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
Regard being had to all the circumstances, the Court concludes that in the present case the overall length of the proceedings was not excessive and cannot be considered unreasonable (see Zherdin v. Ukraine (dec.), no. 53500/99, 1 February 2005).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained under Article 6 § 1 of the Convention about the outcome and unfairness of the proceedings in his case.
In the light of all the materials in its possession and in so far as the matters complained of fall within its competence, the Court notes that the applicant enjoyed the right to adversarial proceedings with the participation of interested parties. Within the framework of the proceedings the applicant was able to introduce all necessary arguments in defence of his interests, and the judicial authorities gave them due consideration.
It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention;
3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy