FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11215/03 by Ivan Fyodorovich ZHURBA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 19 June 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 17 March 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

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 FACTS

The applicant, Mr I van Fyodorovich Zhurba, is a Ukrainian national who was born in 1936 and lives in Lugansk . The Ukrainian Government (“the Government”) were re presented by their Agent, Mr Y. Zaytsev .

In 1995 the applicant, at the material time a senior engineer of the OJSC Department Store “Russia”; (the “Company;” ВАТ “ Універмаг Росія” ), re ‑ engineered the Company ’ s heating system, allegedly creating significant savings for his employer. The Company, however, allegedly ignored the applicant ’ s demand to acknowledge his re-engineering works as “an innovative proposal” ( раціоналізаторська пропозиція ) and to reward him accordingly.

In December 1996 the applicant instituted civil proceedings in the Leninsky District Court of Lugansk (the “ District Court ”; Ленінськ ий районн ий суд м. Луганська ) seeking to have his works declared “an innovative proposal” and to obtain remuneration .

On 27 April 1998 the District Court decided that, although the applicant had based his re-engineering project on known technologies, he had developed a specific implementation scheme and created savings for his employer. Accordingly, the court found that the applicant had introduced “an innovative proposal” and awarded him UAH 21,097 [1] . The Company appealed in cassation.

On 8 June 1998 the Lugansk Regional Court (the “Regional Court”; Луганський обласний суд ) [2] quashed this judgment and remitted the case for a fresh consideration, having noted, in particular, that an outside expert opinion should be sought to decide on the innovativeness of the applicant ’ s proposal and that additional investigation was necessary into the parties ’ employment relationship.

Between July 1998 and June 1999 the District Court ordered an expert examination of the applicant ’ s re-engineering works and held eight hearings, in the course of which it examined the parties, witnesses, as well as documentary and other evidence.

On 7 June 1999 the District Court dismissed the applicant ’ s claims, having found that his work did not meet the standard of an “innovative proposal” entitling him to the claimed remuneration. The applicant appealed in cassation.

On 19 July 1999 the Regional Court upheld the judgment of 7 June 1999 and it became final.

Unsatisfied with the outcome of his case, the applicant requested various authorities to quash the decisions taken by the courts by way of lodging a supervisory protest against them and re-opening the proceedings.

On 10 May 2000 the Presidium of the Regional Court quashed the judgment of 7 June 1999 following a protest instituted by the Deputy President of the Supreme Court and remitted the case for a fresh consideration, demanding additional investigation into the facts of the case.

Between June and December 2000 the District Court held seven hearings in the case, in the course of which it examined the parties, witnesses, and documentary evidence.

On 27 December 2000 the District Court dismissed the applicant ’ s claims, having found that his work could not qualify as an “innovative proposal”.

On 26 February 2001 the Regional Court quashed the judgment of 27 December 2000. It further assumed first-instance jurisdiction over the case and decided to hear it on the merits.

Between June 2001 and June 2002 the Regional Court held six hearings, in the course of which it examined the parties, documentary, expert, and other evidence. No hearings were scheduled between July and October 2001 on account of the hospitalization of one of the presiding judges and between November 2001 and February 2002 when an additional expert opinion was prepared.

On 18 June 2002 the Regional Court dismissed the applicant ’ s claims. The applicant appealed in cassation.

On 19 December 2002 the Supreme Court dismissed the applicant ’ s appeal in cassation.

COMPLAINTS

The applicant complained under Article s 6 § 1 and 13 of the Convention about the unreasonable length of his civil proceedings and their unfairness, in particular, errors of fact and law committed by the domestic judicial authorities. He further referred to Articles 25 and 51 of the Convention without any specification.

THE LAW

1. The applicant complained about the excessive leng th of the proceedings initiated in December 1996 and ending in December 2002. He invoked Article 6 § 1 and Article 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 fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

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.”

The Government contended that the applicant ’ s complaints had been lodged out of time. In this regard they noted that the Court should not take into consideration the period after 19 July 1999, the date, when the first final judgment was adopted in the case.

The applicant contested this argument.

The Court notes that the impugned judgment was quashed on 10 May 2000 and that the proceedings subsequently lasted until 19 December 2002. It is the Court ’ s established case-law that the period after the quashing of a final judgment is included in the overall period of the proceedings (see e.g., Svetlana Naumenko v. Ukraine , no. 41984/98, 9 November 2004 and Golovko v. Ukraine , no. 39161/02, 1 February 2007 ). The Court finds no reason to depart from its practice in the present case. It therefore dismisses the Government ’ s objection.

The Court notes that the period to be taken into consideration began on 11 September 1997, when the Convention entered into force in respect of Ukraine , and ended on 19 December 2002. The proceedings therefore lasted before three levels of jurisdiction four years and five months, excluding the interval between 19 July 1999 and 10 May 2000, when no proceedings were pending (see e.g. Golovko v. Ukraine , cited above, § 49).

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).

The Court finds that the proceedings at issue were important for the applicant professionally as well as economically. Nonetheless, the Court does not find any ground for the domestic courts to handle the applicant ’ s claims with particular urgency vis-à-vis other cases pending before them.

The Court considers that the judicial authorities can be held responsible for certain periods of inactivity in examining the applicant ’ s claims as well as for repeated reconsiderations of the matter. At the same time, the Court observes that most of the reconsiderations were sought by the applicant himself and that they can be largely explained by the complexity of the controversial intellectual property issues at heart of the dispute. In particular, the Court notes that the judicial authorities examined various evidence in the course of numerous hearings, including witness testimonies and two expert opinions. Furthermore, the Court also takes into account that the court of appeal took measures to expedite the proceedings by eventually assuming jurisdiction over the case as a first instance court.

In these circumstances, the Court finds that the duration of the proceedings, which lasted four years and five months, did not exceed what may be considered “reasonable” (see e.g., 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.

The Court does not find it necessary in the circumstances to examine under Article 13 of the Convention the same complaint as under Article 6 § 1.

2. The applicant further complain ed under Article 6 § 1 and Article 13 of the Convention that the proceedings in his case were unfair, particularly, as the domestic judicial authorities erred in assessment of facts and application of the law . He also referred to Articles 25 and 51 of the Convention without any explanations.

Having carefully examined the applicant ’ s submissions in the light of all the material in its possession and insofar 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. Particularly, the Court reiterates that the applicant enjoyed the right to adversarial proceedings with participation of interested parties. Within the framework of the proceedings he was able to introduce all necessary arguments defending his interests, and the judicial authorities gave them due consideration.

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

3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible .

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . 4,553.96 euros (EUR).

[2] . Since July 2001 - the Lugansk Regional Court of Appeal ( Апеляційний суд Луганської області ).