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FIFTH
SECTION
CASE OF KADUK v. UKRAINE
(Application
no. 21798/05)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kaduk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21798/05) 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, Ms Larisa Vladimirovna Kaduk (“the
applicant”), on 27 May 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
22 October 2008 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.
On
27 November 2009 an additional question concerning the applicant’s
complaint under Article 13 of the Convention was put before the
Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in the village of Solontsievka,
Kharkiv Region, Ukraine.
- On
15 March 1998 the applicant’s husband, who worked as an
electrician at the construction site, died as a result of a
work-related accident. On 10 September 1998 the
applicant instituted proceedings in the Dzerzhynsky District Court of
Kharkiv against a joint stock company “T.”(“the
company”) claiming compensation for pecuniary and non-pecuniary
damage sustained as a result of his death.
- On
15 September 1998 the case was transferred to the Zhovtnevy District
Court of Kharkiv, which on 24 January 2001 allowed in part the
applicant’s claims.
- On
24 April 2001 the Kharkiv Regional Court
upheld this judgment. It became final.
- On
21 June 2001 the amendments to the Code of Civil Procedure entered
into force. They provided a right to lodge a cassation appeal within
a three-month period with the Supreme Court against court decisions
adopted before 21 June 2001 and which had entered into force before
that date. On 19 July 2001 the company
lodged an appeal in cassation.
- On
28 February 2002 the Supreme Court quashed the decisions of the lower
courts and remitted the case for a fresh consideration to the first
instance court.
- In
the course of the proceedings before the first instance court three
other companies and the local department of the State Insurance Fund
for Work-Related Accidents and Diseases (“the Fund”) were
joined as co-defendants.
- On
10 March 2006 the Zhovtnevy District Court of
Kharkiv found in part for the applicant. The court awarded her, inter
alia, UAH 68,648.34 (about EUR
11,366) to be paid by the Fund.
- The
Fund appealed against that judgment; however, on 24 October 2006 the
Kharkiv Regional Court of Appeal declined its appeal as lodged out of
time. The Fund appealed in cassation. On 13 December 2007 the Lugansk
Regional Court of Appeal, sitting as a court of cassation, quashed
that decision and remitted the matter of the admissibility of the
appeal for a fresh consideration.
- On
5 November 2008 the Kharkiv Regional Court of Appeal partly allowed
the appeal by the Fund and ruled that the above amount of
UAH 68,648.34 should be paid by the company and not by the Fund.
It upheld the remainder of the judgment.
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:
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. ...”
- The
Government contested the applicant’s complaint.
- The applicant instituted proceedings on 10 September
1998. The Court reiterates that it can take into account only those
periods when the case was actually pending before the courts, thus
excluding from calculation those periods between the adoption of the
final and binding judgments and their revocation in the course of the
extraordinary proceedings (see Markin v. Russia (dec.),
no. 59502/00, 16 September 2004, and Pavlyulynets v. Ukraine,
no. 70767/01, §§ 41-42, 6 September 2005). The Court notes
that the judgment of 24 January 2001 became res judicata on 24
April 2001, when it was upheld by the court of appeal. The
Court further observes that it was only by virtue of the introduction
of the new transitional remedy on 21 June 2001 that the
applicant was able to challenge the decisions of the lower courts. In
such circumstances, the recourse to the Supreme Court to challenge
proceedings which had been brought to an end by a final decision must
be seen as akin to a request to reopen those proceedings by means of
the extraordinary transitional remedy provided for by the Law of 21
June 2001 (see Prystavska v. Ukraine (dec.), no. 21287/02,
ECHR 2002 X). Therefore, the period from 24 April 2001 to
28 February 2002 cannot be taken into account. The proceedings
ended on 5 November 2008. They thus lasted about nine years and
four months at three 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 they 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 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 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the lack of an
effective remedy for the length-of-proceedings complaint. The
relevant provision of the Convention reads as follows:
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.”
A. Admissibility
- The
Government submitted that this complaint should be declared
inadmissible as the applicant cannot be considered a victim of the
alleged violation.
- The
applicant disagreed.
- The
Court notes that this complaint was lodged by the applicant in April
2009. The Court finds that it 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
Government submitted that Article 13 was not applicable to the
circumstances of the present case, since the applicant had never made
out an arguable claim under Article 6 § 1.
- The
applicant disagreed.
- The Court reiterates that Article 13 guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 to hear a case within a
reasonable time (see Kudła v. Poland [GC],
no. 30210/96, § 156, ECHR 2000-XI). The Government did not name
any such remedy available to the applicant.
- The Court considers that in the present case there has
been a violation of Article 13 of the Convention on account of the
lack of a remedy under domestic law whereby the applicant could have
obtained a ruling upholding her right to have her case heard within a
reasonable time, as set forth in Article 6 § 1 of the Convention
(see Efimenko v. Ukraine,
no. 55870/00, § 64, 18 July 2006).
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION WITH RESPECT TO THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained under Article 6 § 1 of the Convention about
unfairness of the proceedings in her case.
- The Court notes that the applicant failed to appeal in
cassation against the decision of 5 November
2008 (see Vorobyeva v. Ukraine (dec.), no. 27517/02, 17
December 2002).
- It
follows that this part of the application must be declared
inadmissible for non-exhaustion of domestic remedies, pursuant to
Article 35 §§ 1 and 4 of the Convention.
IV. 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 100,000 euros (EUR) in respect of pecuniary and
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, ruling on an equitable basis, it awards the applicant
EUR 2,400 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant, who was not represented before the Court, claimed UAH
1,300 (about EUR 120) for the legal expenses incurred before the
Court. She provided a receipt evidencing
payment to a lawyer of the above amount for drafting documents to the
Court. She also claimed UAH 212.79 (about EUR 20) for mailing
her letters to the Court. The applicant provided postal receipts in
support of this claim.
- The
Government contested the claim of UAH 1,300. They left the claim of
UAH 212.79 to the Court’s discretion.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicant EUR 140 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 complaints concerning the excessive
length of the proceedings and lack of an effective remedy in that
respect admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 2,400 (two thousand four hundred euros) in respect of
non-pecuniary damage and EUR 140 (one hundred and forty euros) for
the costs and expenses, plus any tax that may be chargeable to the
applicant, 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 amounts 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 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait
Maruste
Deputy Registrar President
