20856/05

FIFTH SECTION             CASE OF MAKHONKO v. UKRAINE  (Application no. 20856/05)                       JUDGMENT       STRASBOURG   13 October 2011     This judgment is final but it may be subject to editorial revision. In the case of Makhonko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Mark Villiger, President,  Isabelle Berro-Lefèvre,  Ann Power, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 20 September 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 20856/05) 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 Georgiy Ivanovich Makhonko (“the applicant”), on 20 May 2005. 2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev, of the Ministry of Justice. 3.  On 12 January and 14 October 2009, respectively, the President of the Fifth Section decided to communicate to the Government the applicant’s complaints about the length of the first, second and fourth sets of proceedings. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.  The applicant was born in 1933 and lives in Mariupol. A.  First set of proceedings 5.  On 2 June 1998 he lodged a claim with the Zhovtnevyy District Court of Mariupol (“Zhovtnevyy Court”) against his former employer, the A. company (subsequently succeeded by the M. company), seeking reimbursement of medication expenses and compensation for non-pecuniary damage caused to him as a result of the work-related injury. 6.  Following three remittals of the case for fresh examination, on 26 September 2005 the court partly allowed the claim and awarded the applicant certain amounts. The judgment was enforced on 22 June 2006. 7.  On 8 December 2005 and 22 October 2007, respectively, the Donetsk Regional Court of Appeal and the Kyiv City Court of Appeal (the latter court acting as a court of cassation) upheld that judgment. 8.  According to the Government, in the course of the proceedings the applicant specified his claim and lodged several procedural petitions. Eight hearings were adjourned following his requests or due to his or both parties’ failure to appear, which protracted the proceedings by ten months approximately. Twenty-six hearings were adjourned mainly due to the respondent’s failure to appear or following its requests, due to the absence of a judge, because the court needed to obtain additional documents or for unspecified reasons. Four forensic examinations were carried out. B.  Second set of proceedings 9.  On 9 June 1998, in the course of the first set of proceedings, the applicant lodged an additional clam with the Zhovtnevyy Court against the A. company, seeking the recovery of salary-related arrears. On 13 December 2001 the court disjoined this claim from the first set. 10.  Following two remittals of the case for fresh examination, on 29 December 2004 the court partially allowed that claim and awarded the applicant certain amounts. The judgment was enforced on 8 July 2005. 11.  On 29 November 2005 and 26 February 2008, respectively, the Donetsk Regional Court of Appeal and the Kyiv City Court of Appeal (the latter court acting as a court of cassation) upheld that judgment. 12.  According to the Government, in the course of the proceedings the applicant specified his claim, lodged several procedural petitions and twice lodged appeals in breach of the procedural formalities. Fifteen hearings were adjourned following his requests or due to his failure to appear, which protracted the proceedings by nine and a half months approximately. Nineteen hearings were adjourned mainly due to the respondent’s failure to appear or following its requests, because the court needed to obtain additional documents or for unspecified reasons. Six forensic examinations were carried out. C.  Third set of proceedings 13.  In September 1998 the applicant lodged a claim with the Zhovtnevyy Court against the A. company, seeking the recovery of certain health-related payments. 14.  As it appears from the case file, on 13 December 2001 the court partially allowed the applicant’s claim and awarded him certain amounts. On 11 March 2003 and 8 September 2004, respectively, the Donetsk Regional Court of Appeal and the Supreme Court partially amended that judgment and upheld its remainder. D.  Fourth set of proceedings 15.  On 10 May 2002 the applicant lodged a claim with the Zhovtnevyy Court against the Social Insurance Fund, seeking the recovery of certain health-related payments. 16.  Following one remittal of the case for fresh examination, on 20 October 2006 the court allowed the claim in part and awarded the applicant certain amounts. On 13 December 2006 and 2 April 2007, respectively, the Donetsk Regional Court of Appeal and the Supreme Court amended that judgment having increased the amounts due to the applicant. 17.  According to the Government, in the course of the proceedings the applicant specified his claim and challenged the judge. Three hearings were adjourned due to his absence or following his requests. The applicant disagreed that he had requested adjournments. These delays on the applicant’s part protracted the proceedings by three months approximately. Nineteen hearings were adjourned mainly upon the respondent’s requests or its failure to attend the hearings, absence of a judge, electricity blackouts in the court premises, because the court needed to obtain additional documents or for unspecified reasons. E.  Fifth set of proceedings 18.  In September 2004 the applicant lodged a claim with the domestic courts against the Social Insurance Fund, seeking the recovery of the cost of sanatorium vouchers. 19.  By the final ruling of 27 December 2007, the Supreme Court rejected that claim as unsubstantiated. THE LAW I.  SCOPE OF THE CASE 20.  After the communication of the case to the respondent Government, the applicant introduced a new complaint about partial non-enforcement of the judgment of 13 December 2006, without invoking any specific provision of the Convention. 21.  In the Court’s view, this complaint is not an elaboration of the applicant’s original complaint about the length of the proceedings, lodged approximately four years and eight months earlier, on which the parties have commented (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). The Court considers, therefore, that the scope of the present case before it is limited to that original complaint. The complaint about partial non-enforcement of the aforementioned judgment will be dealt with in a separate application. II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE FIRST, SECOND AND FOURTH SETS OF PROCEEDINGS 22.  The applicant complained under Articles 3, 6 § 1 and 13 of the Convention about the length of the first, second and fourth sets of proceedings. The complaint falls to be examined solely under Article 6 § 1, 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 ...” 23.  The Government contested that argument stating that the cases had been complex and that the applicant had contributed to their length. They agreed that the examination of the cases by the courts of cassation had been somewhat delayed due to the backlog in the Supreme Court, but this problem had been resolved by legislative measures in February 2007. 24.  From the outset, the Court considers that, even though the first two sets of proceedings were pending simultaneously from 9 June 1998 to 13 December 2001, the length of each set should be examined separately (see Terentyev v. Ukraine, no. 39763/02, § 39, 29 August 2008). Thus, the first set of proceedings, which began on 2 June 1998 and ended on 22 October 2007 (and not on 22 June 2006, as suggested by the Government), lasted for about nine years, four months and twenty days in three judicial instances. The second set of proceedings, which began on 9 June 1998 and ended on 26 February 2008 (and not on 8 July 2005, as suggested by the Government), lasted for about nine years, eight months and seventeen days in three judicial instances. The fourth set of proceedings, which began on 10 May 2002 and ended on 2 April 2007, lasted for about four years and eleven months in three judicial instances. A.  Admissibility 25.  The Court notes that the proceedings in the fourth set lasted for about four years and eleven months. This duration, to which the applicant contributed (see paragraph 17 above), did not in itself exceed what may still be considered “reasonable” (see, for instance, Sen v. Ukraine (dec.), 31740/08, 5 November 2010). It follows that the complaint about the length of this set of proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 26.  The Court further notes that the complaints about the first and the second sets of proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.  Merits 27.  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). 28.  Turning to the circumstances of the cases, the Court considers that neither their complexity nor the conduct of the applicant, who contributed somewhat to their length (see paragraphs 8 and 12 above), can explain their overall duration. In assessing the conduct of the authorities, the Court has had regard to the number of remittals of the cases for fresh examination (see paragraphs 6 and 10 above) and the numerous adjournments of the hearings, other than those caused by the applicant (see paragraphs 8 and 12 above). Besides, it notes the lengthy periods of the examination of the applicant’s appeals in cassation (see paragraps 7 and 11 above). Even though the legislative measures referred to by the Government were introduced in February 2007, those appeals in cassation were examined later. In light of the above, the Court concludes that the protracted length of the first and the second sets of proceedings has not been justified by any plausible explanation on the part of the State. 29.  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). 30.  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 the length of the first and the second sets of proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31.  Lastly, the applicant complained under Articles 2, 3, 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about and on account of the unfavourable outcome of proceedings, and under Article 6 § 1 and 13 about the length of the third and the fifth sets of proceedings. 32.  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 those articles of the Convention. 33.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 34.  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 35.  The applicant claimed various amounts allegedly due to him and not awarded by the domestic courts in respect of pecuniary damage and 876,000 euros (EUR) in respect of non-pecuniary damage. 36.  The Government contested these claims. 37.  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 suffered anxiety on account of the protracted length of proceedings and awards him EUR 2,900 under this head. B.  Costs and expenses 38.  The applicant did not make any claim under this head. Therefore, the Court makes no award. C.  Default interest 39.  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 first and the second sets of proceedings admissible and the remainder of the application inadmissible;   2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the first and the second sets of proceedings;   3.  Holds (a)  that the respondent State is to pay the applicant, within three months EUR 2,900 (two thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the Ukrainian hryvnia 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 13 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Stephen Phillips Mark Villiger Deputy Registrar President