SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53500/99 
by Viktor Yuriyovych ZHERDIN 
against Ukraine

The European Court of Human Rights (Second Section), sitting on 1 February 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr I. Cabral Barreto
 Mr R. Türmen
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs A. Mularoni, 
 Ms D. Jočienė, judges
 Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 17 March 1999,

Having regard to the observations submitted by the respondent Government and the observations submitted in reply by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Viktor Yuriyovych Zherdin, is a Ukrainian national who was born in 1961 and lives in Kramatorsk, Ukraine.

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The first set of proceedings

a.  Proceedings before the final judgment in the applicant's favour

On 26 December 1995 the applicant instituted proceedings in the Kramatorsk City Court (the “Kramatorsk Court”) against the JSC “TEM” company (his first employer) (“TEM”) for compensation for salary arrears.

On 28 January 1997 the Kramatorsk Court allowed the applicant's claims in part.

On 7 May 1997 the Presidium of the Donetsk Regional Court (the “DRC”), following a protest lodged by the acting President of the DRC, quashed the judgment of 28 January 1997. The case was remitted for fresh consideration to the Kramatorsk Court in June 1997.

On 10 October 1997 the Kramatorsk Court allowed the applicant's claims in part and ordered TEM to pay the applicant UAH 1,041.22 in compensation.

On 11 December 1997 the DRC upheld this judgment.

b.  Proceeding after the protest introduced by the applicant (resumed proceedings)

In March 1998 the applicant applied to the prosecutor for the Donetsk Region requesting him to file a protest against the judgment of 10 October 1997. On 14 April 1998 it was rejected by the prosecutor as being unsubstantiated.

On 10 August 1998 the applicant lodged a complaint with the President of the Supreme Court requesting him to institute supervisory review proceedings in his case. This appeal was remitted to the DRC for further consideration.

On 12 October 1998 the case was referred to the President of the DRC for re-examination. The President decided to lodge a protest with the Presidium of the DRC.

On 25 November 1998 the Presidium of the DRC quashed the judgment of 10 October 1997 and remitted the case to the Kramatorsk Court for fresh consideration.

On 5 March 1999 the hearing was adjourned to 21 June 1999 due to the parties' failure to appear in court.

On 21 June 1999 the parties failed to appear for a hearing. The hearing was adjourned.

On 12 August 1999 the hearing was adjourned due to the judge's illness.

On 12 October 1999 the applicant lodged a motion with the President of the Kramatorsk Court to have one of the judges withdrawn from the case. On 14 October 1999 the President of the Kramatorsk Court rejected this application.

On 29 October 1999 the parties failed to appear at a hearing, which was adjourned to 28 December 1999.

On 24 December 1999 the applicant lodged a petition to study the case-file, which was later allowed.

On 28 December 1999 the court adjourned the hearing due to the defendant company's failure to appear before the court. It was rescheduled for 8 February 2000.

On 8 February 2000 the court rescheduled a hearing due to the illness of the defendant's representative.

On 13 March 2000 the applicant amended his claims. The hearing was adjourned due to the defendant company's failure to appear.

On 4 April 2000 the applicant amended his claims for the second time.

On 13 April 2000 the Kramatorsk Court allowed the applicant's claims and ordered TEM to pay the applicant UAH 5,949.11 in compensation for salary arrears.

On 27 July 2000 the DRC upheld this judgment.

According to the documents submitted by the Government, the judgment of 13 April 2000 was enforced in full on 30 November 2000. The enforcement proceedings were terminated on the same date.

On 13 December 2000 the Presidium of the DRC allowed the protest filed by the President of the DRC following the defendant company's supervisory review appeal, quashed the judgment of 13 April 2000 and the ruling of 27 July 2000 and remitted the case to the Kramatorsk Court for fresh consideration.

On 20 February 2001 the Kramatorsk Court informed the applicant about the resolution of the Presidium of 13 December 2000.

On 16 March 2001 the applicant received a copy of the resolution.

On 20 March 2001 the applicant amended his claims. He sought a higher amount of compensation, the participation of the prosecutor in the case, the taking of additional evidence and the adjournment of the proceedings.

The hearings were adjourned on 21 March, 26 April and 22 May 2001 due to the defendant company's failure to appear in court.

On 20 June 2001 the court decided to suspend the hearing in order to allow the defendant company time to study the case documents.

On 26 June 2001 the applicant requested the withdrawal of the judge and the inclusion of additional evidence in the case file. This motion was rejected on 27 June 2001.

On 21 August 2001 the proceedings were resumed. However, the court decided to suspend the proceedings.

On 23 August 2001 the judge requested additional evidence from the defendant company.

On 28 September, 23 October, 22 November and 5 December 2001 the defendant company failed to appear in court.

On 21 December 2001 the panel of three judges of the Supreme Court rejected the applicant's request for leave to appeal in cassation against the judgments of 10 October 1997, 11 December 1997 and 25 November 1998.

On 15 January 2002 the defendant company requested that additional evidence be added to the case file.

On 12 February 2002 the hearing did not take place because the presiding judge was on leave.

The court decided to suspend the proceedings on 21 March 2002.

In the course of the resumed proceedings, on 26 March 2002 the Kramatorsk Court allowed the applicant's claim for compensation for salary arrears, as amended on 20 March 2001. It ordered TEM to pay the applicant UAH 3,476.72 in compensation. On 16 April 2002 the court also corrected a mistake in the calculation of the amount of compensation awarded in the aforementioned judgment.

On 26 April 2002 the Kramatorsk Court issued a writ of execution in respect of its judgment of 26 March 2002.

On 30 April 2002 the applicant lodged an appeal against the judgment of 26 March 2002.

On 8 May 2002 the Kramatorsk Court left the applicant's appeal without consideration due to his failure to comply with the time-limit. On 22 May 2002 the applicant appealed against the ruling of 8 May 2002.

On 23 May 2002 the Kramatorsk Court left the applicant's appeal against the decision of 8 May 2002 without consideration due to his failure to comply with formalities prescribed by law. The applicant lodged an appeal directly with the DRC of Appeal. On 12 June 2002 the DRC of Appeal remitted the appeal to the Kramatorsk Court for a ruling on its admissibility.

On 17 June and 22 July 2002 the Kramatorsk Court returned the applicant's appeals on account of his failure to correct mistakes in them.

On 25 September 2002 the Dzerzhinsk District Bailliffs' Service initiated enforcement proceedings in respect of the judgment of 26 March 2002.

On 17 October 2002 the sum awarded to the applicant was transferred to the account of the Dzerzhinsk District Bailliffs' Service.

On 24 March 2003 the Dzezhinsk District Bailliffs' Service received information about the details of the applicant's bank account.

In August 2003 the applicant received the sum due to him and the judgment of 26 March 2002 was enforced.

2.  The second set of proceedings

On 23 October 1997 the applicant instituted proceedings in the Kramatorsk Court against the TEM Construction Department (his second employer) (“CDTEM”) seeking his reinstatement and compensation for salary arrears and loss of earnings.

On 23 December 1997 the Kramatorsk Court allowed his claims in part and orderd CDTEM to pay the applicant UAH 2,462.03 in compensation for salary arrears and loss of earnings. Otherwise it rejected his claims.

On 30 April 1998 the DRC quashed the judgment in so far as it awarded compensation for salary arrears and upheld the remainder.

On 10 November 1998 the Kramatorsk Court awarded the applicant UAH 1,191.47 in compensation for salary arrears.

On 10 February 1999 the Presidium of the DRC, following a protest filed by the President of the Donetsk Regional Court and in the presence of the representative of the Donetsk Regional Prosecutor's Office, quashed the judgment of 10 November 1998 and remitted the case for fresh consideration. The applicant was not informed about the introduction of a protest.

The judgment of 10 November 1998 with respect to the award of compensation for salary arrears was enforced in April 1999.

On 20 July 1999 the Kramatorsk Court rejected the applicant's claim for loss of earnings as being unsubstantiated. The applicant did not appeal against this decision.

On 8 January 2002 the panel of three judges of the Supreme Court rejected the applicant's cassation appeal against the Kramatorsk Court's judgment of 23 December 1997 and the DRC's ruling of 30 April 1998.

3.  The third set of proceedings

In December 2001 the applicant instituted proceedings in the Kramatorsk Court against the housing department, claiming in particular that the housing department had unlawfully decided to demolish the balcony of his apartment.

On 17 April 2003 the Kramatorsk Court rejected the applicant's claims.

On 7 July 2003 the DRC of Appeal quashed the judgment of 17 April 2003 and ordered the housing department to pay the applicant UAH 500 in compensation for moral damage.

In February 2004 the applicant lodged a cassation appeal with the Supreme Court. However, the Kramatorsk Court and the DRC of Appeal refused the applicant leave to appeal in cassation on account of his failure to comply with the time-limit for filing a cassation appeal.

On 6 February 2004 the Kramatorsk Court informed the applicant that his cassation appeal had been sent to the Supreme Court.

4.  The fourth set of proceedings

On 22 July 2002 a judge of the Kramatorsk Court ordered the applicant to pay maintenance in respect of his son.

On 27 March 2003 a judge of the Kramatorsk Court quashed the decision of 22 July 2002 and decided to hear the parties' arguments on the maintenance issue.

On 8 April 2003 the judge of the Kramatorsk Court ordered the applicant to pay maintenance to his son until 4 January 2009.

On 7 July 2003 the DRC of Appeal upheld this judgment.

On 28 October 2003 the Kramatorsk Court refused the applicant leave to appeal in cassation as the cassation appeal had been lodged out of time. On 22 December 2003 the DRC of Appeal upheld this ruling.

COMPLAINTS

The applicant complains under Articles 6 § 1 and 13 of the Convention about the excessive length of the civil proceedings (first and second sets of proceedings) as well as the non-execution of the judgments of 23 December 1997 and 26 March 2002 given in his favour and the lack of effective remedies in this respect.

He further complains under Article 6 § 1 of the Convention about the unfairness of the proceedings in so far as the final judgments of the Kramatorsk City Court of 28 January 1997, 10 October 1997, 10 November 1998 and 13 April 2000 were quashed by the Presidium of the Donetsk Regional Court in the course of supervisory review proceedings.

In addition, the applicant complains under Article 6 § 1 of the Convention about the unfairness of the outcome of all four sets of proceedings and the lack of independence and impartiality of the courts hearing his claims.

Furthermore, he complains under Articles 6 § 1 and 13 about a violation of his right of access to court (fourth set of proceedings) and the lack of effective remedies in this respect.

He also alleges, without further specification, that the situation brought about by the delays in the proceedings violates his rights guaranteed by Articles 2, 3 and 4 of the Convention.

Moreover, the applicant complains under Article 8 of the Convention that his right to respect for his private life was violated as a result of the unfairness of the decision ordering him to pay maintenance to his son. He also complains that the principle of equality of spouses was infringed by that decision (Article 7 of Protocol No. 5 to the Convention).

THE LAW

A.  The Government's objection to the admissibility of the application

The Government submitted that the Court's competence in the instant case only extended to events that took place after 11 September 1997, the date of entry of the Convention into force in respect of Ukraine.

The applicant disagreed. In particular, he stated that, in assessing the length of the proceedings in his case, the Court should take account of events which took place before Ukraine's ratification.

The Court notes that the proceedings were resumed on 25 November 1998, following the initiation of the supervisory review proceedings by the applicant (the first set of proceedings). It therefore considers it necessary to examine the reasonableness of the length of the proceedings as from that date, given that the judgment of the Kramatorsk Court of 10 October 1997 became final after being upheld by the Donetsk Regional Court on 11 December 1997.

B.  Complaints under Articles 6 § 1 and 13 of the Convention

The applicant complained about the excessive length of the two sets of civil proceedings and the non-enforcement of the judgments of the Kramatorsk City Court given in his favour. Furthermore, he complained about the quashing, by virtue of protests, of the final judgments of the Kramatorsk Court of 28 January 1997, 10 October 1997, 10 November 1998 and 13 April 2000. He also complained about the unfavourable outcome of all the various proceedings and the lack of independence and impartiality of the judges hearing his case. He alleged that he had no effective remedies by which to complain about the excessive length of the proceedings in his case and the lack of effective access to the domestic courts. He referred to Articles 6 § 1 and 13 of the Convention, which in so far as relevant, provide:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

“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.”

1.  Length of the first set of proceedings and lack of effective remedies in that respect

(a).  Length of the first set of proceedings

(i)  The parties' submissions

The Government maintained that the proceedings were complex and that there were no significant periods of delay that could be attributed to the domestic authorities. In particular, they stated that the applicant was himself responsible for the delays in the case by failing to appear on several occasions and by complaining to various public prosecutors and presidents of courts with a view to the initiation of supervisory review proceedings.

The applicant disagreed. In particular, he stated that he was present at all hearings of which he had been duly informed.

(ii)  The Court's assessment

The Court notes that the proceedings at issue began in December 1995 and were terminated in August 2003 (their overall duration is therefore almost seven years and eight months). However, the proceedings were not continuous throughout this period as the judgment of 10 October 1997 became final on 11 December 1997 (and was quashed later on 25 November 1998 upon the applicant's supervisory review motion). Taking into account the fact that a part of the applicant's complaints about the length of the proceedings falls outside its competence ratione temporis as the Convention entered into force in respect of Ukraine on 11 September 1997 and the fact that the proceedings were resumed upon the applicant's protest, the period at issue should be counted from 25 November 1998, i.e. the date of the resolution of the Presidium of the Presidium of the Donetsk Regional Court. This period therefore lasted four years and nine months.

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).

It considers that the subject matter of the litigation was not especially complex.

It notes that there were certain delays attributable to the judicial authorities caused by their various remittals of the case for fresh consideration and the absence of a judge on two occasions due to his illness and being on leave. However, the authorities cannot be considered to have been primarily responsible for the length of the proceedings (see Ciricosta and Viola v. Italy, no. 19753/92, § 28, judgment of 4 December 1995).

In view of the applicant's particular financial situation and living conditions, the Court considers that what was at stake for him could have required diligence on the part of the State authorities. However, the applicant did not treat the matter as urgent (see below), given his conduct throughout the course of the proceedings.

The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Humen v. Poland, no. 26614/95, § 66, judgment of 15 October 1999). It observes that the proceedings in the Kramatorsk City Court were reinitiated on 25 November 1998 and that the final award in the applicant's favour was enforced in August 2003. Although certain periods of delay can be attributed to the defendant company and the domestic authorities (the failure of the defendant company to attend hearings on 11 occasions and the fact that the judge was on leave on one occasion and was ill on another occasion), the Court nevertheless considers that the applicant was responsible for some significant delays in the course of the proceedings (failure to appear before the court on three occasions, amendment of his claims on three occasions, requests for the withdrawal of a judge on two occasions and failure to comply with the rules governing the lodging of appeals). Furthermore, the judgment of 13 April 2000 was enforced in full on 30 November 2000.

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 accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001). Furthermore, it observes that the courts hearing the case attempted to streamline the proceedings and to encourage the applicant and the defendant company to appear before them.

In conclusion, regard being had to all the circumstances of the case and in particular to the conduct of the applicant, the length of the proceedings after their resumption on 25 November 1998 cannot be considered unreasonable.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b.  The lack of effective remedies in respect of the length of the proceedings

The Government stated that the applicant had effective remedies in respect of his complaints, including the possibility of obtaining reimbursement of his judgment debt together with a sum which took account of inflation or initiating disciplinary proceedings against any judge whom he considered responsible for the alleged protraction of the proceedings. The applicant did not exercise these remedies.

The applicant disagreed. In particular, he stated that these remedies were not effective and he was not obliged to exhaust them.

The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its above considerations under Article 6 § 1 of the Convention, the Court does not find that the applicant had an arguable claim for the purposes of Article 13, which provision does not therefore apply (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

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 length of the second set of proceedings

The Court observes that the proceedings at issue began in October 1997, December 1998 and 25 September 2002 and were terminated in July 1999 (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002), April 1999 and August 2003. It further notes that the proceedings, the enforcement stage being an integral part of the calculation of the overall length (see Timotiyevich v. Ukraine (dec.), no. 63158/00, 18 May 2004), lasted one year and nine months.

Having regard to the above-mentioned criteria for the assessment of the “reasonable time” requirement, the Court considers that the length of the proceedings complained of did not exceed a reasonable time.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The fairness of the first and second sets of proceedings

a.  Submissions of the parties

The Government observed that the supervisory review of the judgments in the applicant's favour did not offend the principles of the rule of law and legal certainty. They maintained that the protest could not be used in an arbitrary manner as this procedure was transparent, foreseeable and used by citizens as an effective mechanism for appealing against judicial decisions.

The Government noted that the applicant had pursued supervisory review proceedings of his own motion. They further observed that the quashing of the judgment of 28 January 1997 took place before the date of entry of the Convention into force in respect of Ukraine. Therefore this part of the applicant's complaints should be rejected as being incompatible ratione temporis.

Furthermore, they pointed out that the judgment of 10 October 1997 was quashed following the applicant's complaint lodged with the President of the Supreme Court and the new judgment of 13 April 2000 was in the applicant's favour. The applicant could not therefore claim to be a victim under Article 34 of the Convention.

As to the applicant's complaint about the quashing of the judgment of 10 November 1998, the Government noted that the applicant could not claim to be a victim under Article 34 of the Convention as that judgment had in fact been enforced.

The applicant disagreed. In particular, he stressed that the final decisions given in his favour were quashed and, therefore, the principle of legal certainty had been infringed.

b.  The Court's assessment

(i)  The quashing of the judgments of 28 January 1997, 10 October 1997 and 10 November 1998

The Court notes that the quashing of the judgment of 28 January 1997 took place before the date of entry of the Convention into force in respect of Ukraine (11 September 1997). It considers, therefore, that this part of the application should be rejected as being incompatible ratione temporis.

Moreover, it finds that the applicant cannot claim to be a victim in respect of the quashing of the judgments of 10 October 1997 and 10 November 1998, since the judgment of 10 October 1997 was quashed on 25 November 1998 following the applicant's complaint lodged with the President of the Supreme Court of Ukraine. Furthermore, the new judgment of 13 April 2000 was given in the applicant's favour and the judgment of 10 November 1998 was enforced in full.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

(ii)  The quashing of the final judgment of 13 April 2000

As to the quashing of the final judgment of 13 April 2000 by the Presidium of the Donetsk Regional Court on 13 December 2000, the Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.  Remainder of the applicant's complaints

a. Complaint under Article 2 of the Convention

In so far as the applicant complains, without further specification, about a violation of his right guaranteed by Article 2 of the Convention, the Court considers that it should be rejected as being incompatible ratione materiae (see Wasilewski v. Poland (dec.), no. 32734/96, 20 April 1999), since this provision does not guarantee a right to have a civil claim considered within a reasonable time.

It follows that this part of the application must be rejected under Article 35 §§ 3 and 4 of the Convention.

b.  Complaint under Article 3 of the Convention

In so far as the applicant complains about a violation of his right guaranteed by Article 3 of the Convention, the Court considers that this complaint should be rejected as being unsubstantiated as there is no indication that the applicant's alleged destitution has harmed his physical or mental health to a degree attaining the minimum level of severity falling within the ambit of Article 3 (see Larioshina v. Russia (dec.), no. 56869/00, 23 April 2002).

It follows that this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.

c.  Complaints under Article 14 of the Convention

In so far as the applicant complains about discrimination in the enjoyment of his Convention rights, contrary to Article 14 of the Convention, the Court considers that, in the absence of any substantiation whatsoever, this complaint is manifestly ill-founded (see Chizhov v. Ukraine (dec.), no. 6269/02, 6 May 2003) and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

d.  Complaints under Article 6 § 1 of the Convention about the outcome of the first, second, third and fourth set of proceedings and the lack of access to a court (fourth set of proceedings) and the lack of effective remedies in that respect (Article 13 complaint)

The Court, having examined these complaints, and without prejudice to other possible grounds of inadmissibility, finds that the materials in the case file do not disclose any appearance of a violation of Articles 6 and 13 of the Convention (see, mutatis mutandis, Ivanchenko, Samoylov and Ivanchenko v. Ukraine (dec.), nos. 60726/00, 22947/02 and 22966/02, 17 February 2004).

It follows that this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

e. Complaints under Article 8 of the Convention and Article 7 of Protocol No. 5 (fourth set of proceedings)

In so far as the applicant complains about the infringement of his rights under Article 8 of the Convention and Article 7 of Protocol No. 5, the Court considers that these grievances should be rejected for non-exhaustion of domestic remedies as the applicant has not appealed in cassation against the judgment of the Kramatorsk City Court of 8 April 2003 and the ruling of the Donetsk Regional Court of Appeal of 7 July 2003 to the Supreme Court of Ukraine and has therefore not, as required by Article 35 § 1 of the Convention, exhausted the remedies available to him under Ukrainian law (see Vorobyeva v. Ukraine (dec.), no. 27517/02, 17 December 2002).

It follows that these complaints must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints under Article 6 § 1 of the Convention relating to the quashing, on 13 December 2000, of a final judgment of 13 April 2000 given in the applicant's favour;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

ZHERDIN v. UKRAINE DECISION


ZHERDIN v. UKRAINE DECISION