AS TO THE ADMISSIBILITY OF
by Vadim Viktorovich VLASENKO
The European Court of Human Rights (Fifth Section), sitting on 26 May 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 13 July 2003,
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 applicant, Mr Vadim Viktorovich Vlasenko, is a Ukrainian national who was born in 1962 and lives in Kryvy Rig, Dnipropetrovsk Region, Ukraine. The Ukrainian Government (“the Government”) were represented by Mr Y. Zaytsev.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked at a joint stock company, “K”. In 1995 he retired.
In July 1995 a medical expert commission recognised the applicant as having a number of work-related illnesses. As a result K paid him a lump sum in compensation and started to pay him a monthly pension.
On 1 July 1998 the applicant instituted civil proceedings in the Tsentralno-Miskyy District Court of Kryvy Rig (“the District Court”) against K, seeking a recalculation of the above-mentioned payments.
On 16 February 1999 the defendant requested the court to order an accountant’s report on the calculation of the payments in question. The court allowed this request.
On 1 March 1999 the expert opinion was read out at a court hearing.
On 18 March 1999 the District Court found for the applicant.
On 25 October 1999, upon an appeal by the defendant, the Dnipropetrovsk Regional Court (since June 2001 the Dnipropetrovsk Regional Court of Appeal) quashed that judgment on the ground that the first-instance court had wrongly calculated the amounts awarded, and ordered a retrial.
The District Court’s hearing scheduled for 8 February 2000 was adjourned at the applicant’s request because he was preparing an additional claim. This claim, apparently for additional payments, was lodged on 22 February 2000. Further additional claims were lodged by the applicant on 11 July 2001 and 4 March 2002.
On 15 March 2000 the District Court ordered, at the defendant’s request, a forensic examination by an accountant. The defendant subsequently refused to bear the costs of the forensic examination in view of lack of funds and the expert terminated the examination. The file was transferred back to the District Court and the next hearing took place on 9 April 2001.
On 17 July 2001 the District Court joined, at the defendant’s request, the local department of the State Social Security Fund (Виконавча дирекція Фонду соціального страхування від нещасних випадків на виробництві і професійних захворювань в м. Кривому Розі) to the proceedings as a co-defendant.
On 20 July 2001 the District Court found for the applicant.
On 10 January 2002, following an appeal by K, the Dnipropetrovsk Regional Court of Appeal quashed the judgment of 20 July 2001 on the ground that the lower court had wrongly calculated the amounts awarded and ordered a retrial.
On 11 June 2002 the District Court found for the applicant.
From 10 July to 31 October 2002 the domestic courts examined the matter of admissibility of the appeal by K against the last-mentioned judgment. Eventually, K lodged an appeal in compliance with the procedural requirements prescribed by law and the proceedings on the merits resumed.
On 27 January 2003 the Dnipropetrovsk Regional Court of Appeal upheld the judgment of 11 June 2002.
On 15 December 2003 the Supreme Court of Ukraine rejected an appeal in cassation by K.
Referring to Article 6 § 1 of the Convention, the applicant complained about the length of the court proceedings. He also invoked Article 13 of the Convention, alleging that he did not have at his disposal an effective domestic remedy for his aforesaid complaint under Article 6 § 1.
The applicant complained that the length of the proceedings had been excessive and that there was no remedy in this regard. He invoked Articles 6 § 1 and 13 of the Convention, which read, in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
“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 Government contended that there had been no violation in the present case as the impugned proceedings had progressed with due pace and no delay could be attributed to the domestic authorities.
The applicant disagreed, asserting that there had been a violation in view of repeated remittals of the case for fresh consideration.
The Court observes that the proceedings in question were initiated in July 1998 and terminated in December 2003. The overall length of the proceedings was, accordingly, five years and five months for three levels of jurisdiction.
The “reasonableness” of the length of these 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 finds that the subject matter of the proceedings in question was not of particular complexity. On the other hand, the Court underlines that the applicant’s claims were of some importance to him. Nonetheless, the Court does not find that there was any ground for the domestic courts to deal with this case with particular urgency vis-à-vis other cases pending before them.
The Court further finds that by lodging additional claims the applicant himself contributed to a certain extent to the length of proceedings in question.
As regards the conduct of the domestic authorities, the Court agrees with the applicant that there were certain delays attributable to the judicial authorities, which were caused, in particular, by two remittals. It reiterates that in a number of cases it has found that the repetitive re-examination of claims within one set of proceedings disclosed a serious deficiency in the domestic judicial system (see, for example, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). However, the Court does not find that these remittals were significant enough to affect the guarantees of Article 6 as, in its view, the case was dealt with within a relatively short period of time after each remittal.
The Court further notes that long delays (for example, between March 2000 and April 2001) were caused by K. Furthermore, the appeals lodged by the defendant against the judgment of 11 June 2002, which subsequently proved to be unfounded, extended the impugned proceedings up to December 2003. The Court also notes that the applicant did not argue that the domestic authorities had been responsible for the delays in question. In the absence of any comments on the matter the Court takes the view that these delays, which in total amount to two years and seven months, cannot be imputed to the respondent State.
The remaining period of two years and ten months cannot, in the Court’s view, be considered “excessive” (see, among other authorities, Zherdin v. Ukraine (dec.), no. 53500/99, 1 February 2005, and Belukha v. Ukraine, no. 33949/02, §§ 66-67, 9 November 2006).
It therefore finds that the applicant’s complaint under Article 6 § 1 should be rejected for being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
No separate issue under Article 13 of the Convention arises either.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen