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FIFTH
SECTION
CASE OF
PETROV AND OTHERS v. UKRAINE
(Applications
nos. 44654/06,
32525/08 and
35537/08)
JUDGMENT
STRASBOURG
8 December
2011
This
judgment is final but it may be subject to editorial revision.
The European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark
Villiger,
President,
Ganna
Yudkivska,
André
Potocki, judges,
and
Stephen Phillips,
Deputy Section Registrar.
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications
(nos. 44654/06, 32525/08, and 35537/08) against
Ukraine lodged with the
Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Ukrainian nationals, Mr
Leonid Vasilyevich Petrov (“the first applicant”), Ms
Lyudmila Fedorovna Lyutova (“the second applicant”) and
Mr Mykola
Yakovych Korchynskyy (“the third applicant”),
on 10
October 2006, 25
June 2008 and 4 July 2008, respectively.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
- The
notice of the applications was given to the Government by the
decisions of the President of the Fifth Section
of 26 August, 18 October and 25
August 2010,
respectively.
THE FACTS
- The
applicants were born in 1955, 1953 and 1946 and live in Gorlivka,
Rovenky and Kryvyy Rih, respectively.
- The
applicants instituted separate sets of civil proceedings against
their employers mainly claiming occupational disability allowances.
I. The proceedings instituted by the first applicant
- On
23 September 1999 the first applicant, a former miner, instituted
civil proceedings in the Mykytivsky District Court of Gorlivka (“the
Mykytivsky Court”) against his former employer, a State-owned
mine, seeking recalculation of his occupational disability payment.
- Between
September 1999 and August 2003 the Mykytivsky Court reconsidered the
case on three occasions. Its judgments of 2 June and 14 November
2000 and 15 October 2001 were quashed by the Donetsk Regional Court
on 24 July 2000, 26 February 2001 and 25 February 2002 for procedural
irregularities and legal and factual errors. Accordingly, the case
was remitted for fresh examination.
- On
18 April 2003 the Mykytivsky Court replaced
the respondent in the case upon the applicant’s request. In
particular, the court ordered another company, the mine’s
successor, to stand as a respondent. The court also ordered the local
social security fund to take part in the proceedings as a
co-respondent.
- On
the same day the Mykytivsky Court delivered a judgment, ordering the
fund to make monthly payments in respect of the applicant’s
occupational disability. By a separate procedural decision,
the applicant’s claims against the other co-respondent were
left without consideration as the applicant withdrew them in the
course of the court hearing.
- On
18 December 2003 the Donetsk Regional Court of Appeal quashed the
judgment of 18 April 2003 and ordered
reconsideration of the case.
- On
20 April 2006 the Supreme Court quashed the decision of the Court of
Appeal, finding that the latter had not complied with the rules of
procedure.
- On
27 July 2006 the Court of Appeal reconsidered the case and adopted a
new judgment reducing the payments awarded to the applicant by the
first-instance court.
- On
22 January 2008 the Kyiv Court of Appeal, acting as a court of
cassation, rejected the applicant’s appeal and confirmed the
judgment of 27 July 2006.
- The
applicant unsuccessfully tried to challenge the courts’
decisions in an extraordinary appeal, which was rejected by the
Supreme Court on 18 May 2009.
- According
to the Government, out of fifty-two scheduled hearings, twenty-four
were adjourned for various reasons. In particular, the hearings were
adjourned twice because of the failure of the
applicant to appear, twenty times due to the failure of the
respondents or their representatives to appear, and twice because of
both parties’ failure to appear. Additionally, two hearings
were adjourned as the judge was absent for health and business
reasons. On several occasions the courts had to renew, at the
applicant’s and the respondent’s request, the term for
lodging an appeal which resulted in a delay of about three months.
Lastly, due to the expert examination ordered at the
applicant’s request, the consideration of the case was delayed
for about six months.
- According
the applicant, the hearings were adjourned twenty-three
times due to the failure of the respondents or their representative
to appear. The applicant also indicated that the case had not been
heard between 10 May 2002 and 7 February 2003 as the presiding
judge’s mandate had expired.
II. The proceedings instituted by the SECOND applicant
- On
23 June 1998 the second applicant, then a miner, instituted civil
proceedings in the Rovenky Town Court of Lugansk Region (“the
Rovenky Court“) against her employer, a State-owned mine,
asking the court to order the mine to issue her a certificate
confirming that she had received an occupational injury.
- In
the course of the proceedings the applicant amended her claims on
several occasions. In particular, she sought compensation for
pecuniary and non-pecuniary damage, resulting from her injury, to be
paid by the mine and the local social security fund.
- Between
June 1998 and May 2003 the Rovenky Court reconsidered the case on two
occasions. Its judgments of 24 November 1998 and 6 May 2003 were
quashed by the Lugansk Regional Court
on 14 January 1999 and 29 January 2004, respectively, for procedural
irregularities and failure to accurately establish the circumstances.
Accordingly, the case was remitted for fresh examination.
- By
the judgment of 24 February 2006, the Rovenky Court rejected the
applicant’s claims as unsubstantiated. Following two
reconsiderations of the case on appeal, the judgment was eventually
confirmed by the Lugansk Regional Court of Appeal on 28 November
2007.
- On
5 March 2008 the Supreme Court rejected the applicant’s appeal
in cassation, finding no fault on the part of the lower courts.
- According
to the Government, out of sixty-eight hearings scheduled in the
course of the proceeding, eleven were adjourned because of the
failure of the applicant or her representative to
appear, eight due to the respondents’ or their representatives’
failure to appear or requests to adjourn hearings, and three because
all the parties failed to appear.
- According
to the applicant, she attended all the hearings; her representative
failed to appear at only two hearings and was later dismissed by the
applicant.
- On
three occasions the courts had to renew, at the applicant’s and
respondents’ requests, the term for lodging an appeal which
resulted in a delay of about four months.
III. The proceedings instituted by the THIRD applicant
- On
26 July 2002 the applicant, then a miner, instituted civil
proceedings in the Ternivsky District Court of Kryvyy Rih (“the
Ternivsky Court”) against two State-owned companies who were
the successors of his former employer, a State-owned mine, and the
local social security fund, seeking recalculation of his occupational
disability payments and compensation for pecuniary and non-pecuniary
damage.
- In
the course of the proceedings the applicant amended his claims on
several occasions. The amendments mainly concerned the amounts he
claimed.
- Between
July 2002 and November 2007 the Ternivsky Court reconsidered the case
on three occasions. Its judgments of 5 July 2004, 6 March 2006
and 23 August 2007 were quashed by the Dnipropetrovsk Regional Court
of Appeal on 4 November 2004, 5 October 2006 and 29 November
2007, respectively, for procedural irregularities and legal and
factual errors. Accordingly, the case was remitted for fresh
examination.
- The
applicant’s appeal in cassation against the decision of
29 November 2007 was rejected by the Supreme Court on 11 March
2008.
- The
case is currently pending before the Ternivsky Court.
- Out
of sixty-three hearings scheduled between 26 July 2002 and 6 December
2010, five were adjourned because of the
failure of the applicant or her representative to
appear, eighteen were adjourned due to the respondents’ or
their representatives’ failure to appear, six times both
parties failed to appear. On four occasions the hearings were
adjourned for the presiding judge was busy with another case.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common legal
background.
II. COMPLAINTS ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicants complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention. Some
of the applicants also relied on Article 13 of the Convention. The
Court considers that the complaints must be examined solely under
Article 6 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 argued that there had been no delays in the course of the
proceedings that could be attributed to the State. They further
submitted that the cases had been complicated; that the applicants
had contributed to the length by lodging additional claims,
procedural requests and appeals, sometimes not in accordance with the
procedure; and that the delays had been caused mainly because of the
parties’ failure to appear before the courts on a number of
occasions.
- As
regards the proceedings concerning the first applicant, the
Government also noted that they had been somewhat protracted because
of the excessive case-load of the Supreme Court. They further argued
that the period from 23 September 1999 to 18 April 2003 must not be
included into the overall duration of those proceedings for the
Court’s consideration, as the applicant had eventually
withdrawn his claims against the original respondent (the mine).
- The
Court observes that the proceedings in the applicants’ cases
lasted for more than nine years, the third applicant’s case
having not been completed so far. The duration of the first
applicant’s proceedings must be examined in its entirety,
because the applicant’s withdrawal of the claims against one of
the respondents was a modification of his original claim, rather than
an indication of intent not to pursue it.
Admissibility
- The
Court notes that the applicants’ complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They 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
applicants and the relevant authorities and what was at stake for the
applicants in the dispute (see, among many other authorities,
Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court reiterates that special diligence is
necessary in disputes relating to the applicant’s principle
source of income (see, mutatis mutandis,
among other authorities, Ruotolo v. Italy,
judgment of 27 February 1992, Series A no. 230-D, p. 39, §
17; Tusashvili v. Russia, no. 20496/04, § 25,
15 December 2005 and Golovko v. Ukraine, no. 39161/02, §
54-55, 1 February 2007).
- The
Court acknowledges that the proceedings might have been somewhat
complicated in particular because the applicants amended their claims
on a number of occasions. Furthermore, the applicants contributed, to
some extent, to the length of the proceedings by failing to attend
some of the hearings and by lodging various procedural requests and
appeals. The Court however considers that the alleged complexity of
the cases and the applicants’ behaviour alone cannot justify
the overall length of the proceedings.
- The
Court observes that the major delays were caused by the repeated
reconsiderations of the cases resulting from the courts’
procedural and substantive errors. In this context, the Court
reiterates that, since remittal is usually ordered because of errors
committed by lower courts, the repetition of such orders within one
set of proceedings discloses a serious deficiency in the judicial
system (see, mutatis mutandis, Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
- The
Court also takes note of the particularly lengthy delays in the
proceedings, for which no acceptable justification was provided (see
paragraphs 10-13, 19-20 and 27-29 above).
- In
the light of the foregoing, the Court concludes that the State
authorities bear the primary responsibility for the excessive length
of the proceedings in the present case.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the ones in the present
cases (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 cases 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.
III. OTHER COMPLAINTS
- The
applicants complained about the outcome and unfairness of the
proceedings and relied on Articles 6 and 13 of the Convention.
- Having
carefully examined the applicants’ remaining complaints 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 and must be dismissed pursuant to
Article 35 §§ 1, 3 (a) 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.”
- The
third applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call
to award him any sum on that account.
A. Damage
- The
first applicant claimed 7,000 euros (EUR) in
respect of non-pecuniary damage.
- The
second applicant claimed 685,665.00 Ukrainian
hryvnias (UAH)
in respect of pecuniary and non-pecuniary damage.
- The
Government contested these claims as unsubstantiated, stating that
there was no causal link between the alleged violation and the loss
allegedly sustained.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicants must
have sustained non-pecuniary damage. Ruling on an equitable basis, it
awards the first and second applicant EUR 4,200 each
under that head.
B. Costs and expenses
- The
first applicant claimed UAH 373.22
for postal and translation expenses in the proceedings before the
Court. The Government left the matter to the Court’s
discretion. Regard being had to the documents in
its possession and to its case-law, the Court
considers that the claim should be allowed in full and awards the
first applicant EUR 33 for costs and expenses.
- The
second applicant did not claim costs and expenses; the Court
therefore makes no award.
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
1. Decides to join the applications;
2. Declares the applicants’ complaints under
Article 6 § 1 of the Convention about the length
of the proceedings admissible and the remaining complaints
inadmissible;
3. Holds that there has been a violation of Article
6 § 1 of the Convention;
4. Holds
(a) that
the respondent State is to pay within three months:
-
to Mr Petrov
EUR 4,200 (four thousand two hundred euros) for non pecuniary
damage and EUR 33 (thirty-three euros) for costs
and expenses,
-
to Ms Lyutova
EUR 4,200 (four thousand two hundred euros) for non pecuniary
damage,
plus
any tax that may be chargeable to the applicants, 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;
5. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 8 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger Deputy
Registrar President
