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The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Bo&scaron;tjan M. Zupančič, President, Ganna Yudkivska, Angelika Nußberger, judges, and Stephen Phillips , Deputy Section Registrar ,

The case originated in an application (no. 595/08) 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 Viktor Georgiyevich Zhuzha (“the applicant”), on 5 December 2007 .

. The Ukrainian Government (“the Government”) were represented by their Agent, Ms Valeria Lutkovska, of the Ministry of Justice.

On 12 July 2010 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

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THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1947 and lives in Dnipropetrovsk.

On 9 March 1995 he instituted defamation proceedings in the Amur-Nyzhnyodniprovskyy District Court of Dnipropetrovsk (“the District Court”) against Mrs M., a local official.

On 27 March 1996 the court returned the applicant’s claim unexamined. On 19 September 1996 it also returned unexamined the applicant’s appeal against the above ruling.

On 4 May 1998, following the objection lodged by the Deputy Head of the Supreme Court, the Dnipropetrovsk Regional Court quashed the ruling of 27 March 1996 and remitted the case for fresh examination.

On 19 October 1999 the District Court delivered a judgment. On 20 December 1999 the Regional Court extended the time-limits for the applicant to lodge an appeal in cassation against the above judgment, quashed it and remitted the case for fresh examination.

On 15 September 2006 the District Court partly allowed the applicant’s claim and ordered Mrs M. to pay him certain amounts in non pecuniary damage.

On 10 October 2006 the applicant appealed against the above judgment. On 19 October 2006 the Court of Appeal requested him to rectify the appeal in accordance with the procedural requirements. Following that, on 17 January 2006 it rejected the appeal as unsubstantiated.

On 17 March 2007 the applicant appealed in cassation. On 5 April 2007 the Supreme Court requested him to rectify the appeal in cassation in accordance with the procedural requirements. Following that, on 26 June2007 it rejected the appeal in cassation as unsubstantiated.

In the course of the proceedings the applicant several times specified his claim. Eight hearings were adjourned due to the applicant’s, his representative’s or both parties’ failure to appear or following the applicant’s representative’s request, which protracted the proceedings by eight and a half months approximately.

Thirteen further hearings were adjourned due to the respondent’s or her representative’s failure to appear, absence of the judge or for unspecified reasons. Between 23 October 2003 and 14 July 2006 the proceedings were suspended due to the respondent’s sickness.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained under Article 6 § 1 and 13 of the Convention about the length of the proceedings in his case. The Court considers that the above complaint falls to be examined solely under Article 6 § 1 of the Convention, 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 ...”

The Government contested that argument stating that the case had been complex and that the applicant had contributed to the overall length of the proceedings.

The period to be taken into consideration began only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account will be taken of the state of proceedings at the time. Between 11 September 1997 and 4 May 1998 no proceedings were pending (see, for instance, Lyutov v. Ukraine, no. 32038/04, § 24, 11 December 2008). The proceedings thus lasted for nine years one month and twenty two days.

A. Admissibility

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

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).

19. Turning to the circumstances of the case, the Court considers that neither the complexity of the case nor the applicant’s conduct, who somewhat contributed to the length of the proceedings (see paragraphs 8 and 10-12 above), cannot explain the overall duration of the proceedings. On the other hand, the Court considers that the main delays were caused by the District Court (see paragraphs 8, 9 and 13 above) and by two remittals of the case for fresh examination (see paragraphs 7 and 8 above). It thus concludes that the main responsibility for the protracted length of the proceedings rested with the State.

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).

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 in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

22. The applicant also complained under Articles 6 § 1 and 13 of the Convention about the unfavourable outcome of the proceedings and lack of access to and of public hearings before the Supreme Court.

23. 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.

It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

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, costs and expenses

The applicant claimed 35,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested the claim.

The Court considers that the applicant must have sustained non-pecuniary damage on account of the violation found. Ruling on an equitable basis, it awards him EUR 1,700 under that head.

B. Default interest

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

Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds

(a) that the respondent State is to pay the applicant, within three months EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič
Deputy Registrar President

ZHUZHA v. UKRAINE - 595/08

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ZHUZHA v. UKRAINE - 595/08

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