CASE OF MORDVANYUK v. UKRAINE (European Court of Human Rights) Application no. 1199/16

The case concerns the applicant’s complaint that the length of proceedings in his pension-related case was excessive and he had no effective domestic remedy in that respect, contrary to Articles 6 § 1 and 13 of the Convention. The proceedings lasted since 2004 and, following remittal of the case to a court in Donetsk in early 2014, the authorities no longer have access to the domestic case file.


FIFTH SECTION
CASE OF MORDVANYUK v. UKRAINE
(Application no. 1199/16)
JUDGMENT
STRASBOURG
22 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Mordvanyuk v. Ukraine,

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

Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 1199/16) 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 Vladimir AnatolyevichMordvanyuk (“the applicant”), on 25 December 2015;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 6 § 1 and 13 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 1 April 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the applicant’s complaint that the length of proceedings in his pension-related case was excessive and he had no effective domestic remedy in that respect, contrary to Articles 6 § 1 and 13 of the Convention. The proceedings lasted since 2004 and, following remittal of the case to a court in Donetsk in early 2014, the authorities no longer have access to the domestic case file.

THE FACTS

2. The applicant was born in 1956 and lives in Sekretarka in the Mykolaiv Region.

3. The Government were represented by their Agent, Mr I. Lishchyna.

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

5. In November 2004 the applicant initiated civil proceedings to challenge the actions of the local pension authority in Donetsk concerning the calculation and payment of his pension.

6. His claims were rejected by the Donetsk Kirovsky District Court (the first-instance court) on 23 December 2004 and by the Donetsk Regional Court of Appeal on 22 February 2005. On 10 June 2009 the High Administrative Court (HAC) remitted the case to the first-instance court.

7. On 24 November 2010 the first-instance court, referring to the coming into force of the new Code of Administrative Justice of 6 July 2005, discontinued the civil proceedings and advised the applicant to re-submit his claim under the new Code.

8. On 7 February 2011 the applicant resubmitted his claim under the Code of Administrative Justice to the first-instance court.

9. On 26 June 2012 the court allowed his claims. On 9 October 2012 this decision was quashed by the Donetsk Administrative Court of Appeal and the claim was rejected.

10. On 12 March 2014 the HAC remitted the case for re-consideration to the first-instance court.

11. The applicant submitted that on 1 July 2014 the first-instance court adopted a decision rejecting his claims. He alleges that he did not receive the text of that decision and is unable to obtain it due to the situation in the region. The applicant submitted only a copy of the court summons sent on 28 June 2014 notifying him of the court hearing scheduled for 1 July 2014.

12. Following the events described in Tsezar and Others v. Ukraine (nos. 73590/14 and 6 others, 13 February 2018), jurisdiction over the applicant’s case was reassigned from the initial first-instance court to the Krasnoarmiysk Court of the Donetsk Region but the latter court has been unable to proceed with the case as the case file had been left in the courthouse in Donetsk and, according to the parties, is inaccessible to them.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF THE CONVENTION

13. The applicant complained that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement and that he had no effective remedy in this connection. He relied on Article 6 § 1 and Article 13 of the Convention, which read 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 …”

Article 13

“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.”

14. The Government contested that argument.

15. The Court considers that even though the applicant’s case technically involved two sets of proceedings – civil and administrative – they related to the same subject, and were based on same facts and arguments. It is only due to the legislative amendments that changed jurisdictional rules in administrative cases that the applicant had to initiate the second set of proceedings (see paragraph 7 above).

16. Therefore the Court considers that the length of both set of proceedings should be assessed overall, meaning that the proceedings remained pending, in the period prior to the decision of the High Administrative Court of 12 March 2014, for nine years and more than two months before three levels of jurisdiction (see paragraphs 5 to 10 above).

17. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

18. In the leading case of Krasnoshapka v. Ukraine (no. 23786/02, 30 November 2006), the Court already found a violation in respect of issues similar to those in the present case.

19. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that, in the relevant period, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

20. The Court further notes that the applicant did not have at his disposal an effective remedy in respect of that complaint.

21. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.

22. In view of this conclusion, the Court does not consider it necessary to examine if in the period after 12 March 2014 the authorities undertook all reasonable efforts to restore the case file.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. 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.”

24. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

25. The Government contested that claim, considering it unjustified.

26. The Court awards the applicant EUR 2,300 in respect of non‑pecuniary damage.

27. The Court considers it appropriate that the default interest rate 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 application admissible;

2. Holds that this application discloses a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of civil proceedings;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the 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;

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

Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                        Arnfinn Bårdsen
Deputy Registrar                                         President

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