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FIFTH
SECTION
CASE OF KUCHERENKO v. UKRAINE
(Application
no. 22600/02)
JUDGMENT
STRASBOURG
26 July
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Kucherenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting 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
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22600/02) 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 Oleksandr Ivanovych Kucherenko (“the
applicant”), on 1 February 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mrs V. Lutkovska, succeeded by Mr Y. Zaytsev.
- On
26 May 2005 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government. Applying Article 29 § 3 of
the Convention, it decided to rule on the admissibility and merits of
the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Donetsk.
- In
1983 the applicant, who at the time was a minor, had an accident at a
summer camp belonging to the Velyka Novosilka fertilizer factory
(“the Factory”; Великоновоселківський
міжгосподарський
комбікормовий
завод) and sustained
permanent disability.
- On
9 March 1994 the applicant sued the Factory for damages, alleging
that the accident in 1983 had been caused by the negligence of the
camp's staff.
- On
15 November 1994 the Budyonivsky District Court of Donetsk (the
“District Court”; Будьонівський
районний суд
м. Донецькa)
ordered a medical assessment of the applicant's injuries. On 23
November 1994 a commission of five experts established that the
applicant suffered from a 100% disability and needed special care.
- On
5 August 1997 the District Court found in favour of the applicant,
awarding him a lump sum in damages and monthly payments to cover his
special care needs. The Factory challenged the judgment on the ground
that, although the camp had been a part of its assets at the time, it
was directly managed by the Velyka Novosilka Trade Union of
Agricultural Workers (the “Trade Union”;
Великоновосілківський
районний комітет
профспілки
працівників
агропромислового
комплексу),
which therefore should assume all liability for the accident.
- On
27 April 1995 the Donetsk Regional Court (the “Regional Court”;
Донецький
обласний
суд)
granted the appeal, quashed the judgment of 5 August 1997
and remitted the case for a fresh consideration.
- On
27 November 1995 the District Court allowed the applicant's claim,
awarding him damages against the Trade Union. The Trade Union
appealed.
- On
11 January 1996 the Regional Court quashed this judgment and remitted
the case for a fresh consideration.
- During
its further consideration of the case, the District Court ordered
another expert examination of the applicant's health. On
27 March 1996 a commission of four experts found that the
applicant's special care needs had not substantially changed since
the last assessment.
- On
5 August 1997 the District Court awarded the applicant damages
against the Trade Union.
- On
25 September 1997 the Regional Court upheld this judgment and it
became final.
- In
October 1997 the enforcement proceedings were initiated in
respect of the judgment of 5 August 1997.
- On
27 February 1998 the District Court Bailiff (судовий
виконавець)
informed the applicant that the judgment remained unenforced on
account of the debtor's lack of funds.
- On
7 October 1998 the Deputy President of the Supreme Court lodged a
protest (an extraordinary appeal) against the rulings of
5 August and 25 September 1997 with the Presidium of
the Regional Court.
- On
28 October 1998 the Presidium granted the protest and remitted
the case for a fresh examination, indicating that the liability of
the Trade Union had not been sufficiently established.
- On
9 November 1998 the Regional Court decided to assume
first-instance jurisdiction over the applicant's claims.
- In
December 1998 the enforcement proceedings were terminated on
account of re-opening of the judicial proceedings.
- On
26 March 1999 the Regional Court decided again that the Factory was
responsible for the actions and omissions of the camp's staff, and
ordered it to pay the applicant compensation for his pecuniary and
non-pecuniary damage.
- On
28 April 1999 the Supreme Court quashed this judgment and remitted
the case for a fresh consideration, finding that the conclusion of
the Regional Court as to the Factory's liability was not sufficiently
substantiated.
- On
19 October 1999 the Regional Court ordered another expert opinion
concerning the applicant's state of health.
- In
February 2000 a commission of five experts upheld the previous
conclusions from 1994 and 1996.
- On
14 March 2000 the Regional Court awarded the applicant compensation
and monthly payments against the Factory. The Factory appealed in
cassation.
- On
31 May 2000 the Supreme Court quashed this judgment essentially
for the same reasons as in 1999.
- During
this consideration of the case, two fresh medical assessments
of the applicant's health were ordered. On 12 December 2000 a
commission of five experts established that the applicant needed an
electric wheelchair and, on 15 August 2001, another commission
calculated the applicant's daily expenses for sanitary
towels.
- From
September 2000 to August 2001, the applicant lodged some six
unsuccessful applications for the withdrawal of Judge K. from the
case.
- On
23 August 2001 the Regional Court found that, although the funds of
the summer camp belonged to the Factory and the Trade Union, the camp
had separate legal liability for the acts and omissions of its staff.
The court further rejected the applicant's claims, noting that he had
never lodged a specific claim against the camp.
- On
22 May 2002 the Chamber of fifteen judges of the Supreme Court
rejected the applicant's cassation appeal and upheld the judgment of
23 August 2001.
- Subsequently,
the applicant unsuccessfully attempted to re-open the proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads 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.
- The
Court notes that the applicant instituted his proceedings in 1994.
However, 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. Nevertheless, in assessing
the reasonableness of the time that elapsed after that date, account
must be taken of the state of proceedings at the time. The period in
question ended on 22 May 2002. It thus lasted four years
and eight months for two levels of jurisdiction.
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).
- The Court notes that the proceedings at issue
concerned the applicant's compensation claim for a permanent
disability and finds that they were of importance to the applicant,
although he had instituted them only ten years after the injury. The
Court considers that the complexity of the case and the applicant's
conduct alone cannot explain the overall length of the proceedings.
It finds that a number of delays, notably, remittals of the case for
a fresh consideration, repetitive expert assessments of the
applicant's injury and an ultimate quashing of a final judgment given
in the applicant's favour, are attributable to the Government.
- 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 e.g., Frydlender, cited above; Dulskiy v.
Ukraine, no. 61679/00, 1 June 2006; and Golovko v.
Ukraine, no. 39161/02, 1 February 2007).
- 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
- The
applicant further complained under Article 6 § 1
of the Convention that the proceedings were generally unfair, in
particular, as the domestic judicial authorities erred in assessment
of the facts and application of the law and as Judge K., who gave the
decision of 23 August 2001, was not impartial. He further
invoked Articles 2, 5 § 1 and 10 of the
Convention and Article 2 of Protocol No. 4 to the
facts of the present case.
- 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 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
- The
applicant claimed 1,214,075 hryvnyas (204,977 euros (EUR)) in respect
of pecuniary damage and 24,500 hryvnyas (EUR 4,136) in respect
of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 1,800 under that head.
B. Costs and expenses
- The
applicant also claimed UAH 288 (EUR 50) for the costs and
expenses incurred before the Court.
- The
Government submitted that the claimed amount was reasonable.
- Regard
being had to the circumstances of the case and the submissions of the
parties, the Court awards the applicant EUR 50 under this head.
C. 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,850
(one thousand eight hundred fifty euros) in respect of non-pecuniary
damage and costs and expenses, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(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 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
