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FIFTH
SECTION
CASE OF KISELYOVA v. UKRAINE
(Application
no. 8944/07)
JUDGMENT
STRASBOURG
10
February 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kiselyova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Zdravka Kalaydjieva,
Julia Laffranque,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8944/07) 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 Lyubov Grigoryevna Kiselyova (“the applicant”),
on 18 February 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 May 2009 the Court
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.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Kherson.
- On 18 August 1998 she lodged a claim with the
Komsomolsky District Court of Kherson (“the District Court”)
against the Komsomolsky District Hospital of Kherson seeking
compensation for occupational illness and non-pecuniary damage.
- Between
23 September 1998 and 22 February 2005, the applicant
lodged seven additional claims that were joined to the main one
amounting overall to UAH 102,225 (14,312 euros, EUR).
- On
15 June 2005 the applicant lodged a complaint with the Kherson
Regional Court of Appeal (“the Regional Court of Appeal”)
seeking to speed up the proceedings in her case. There is no
indication whether and, if so, how the court replied.
- At
a hearing of 21 November 2005 the District Court, in the
presence of the applicant's lawyer, partly allowed the applicant's
claims. On 14 December 2005 the applicant informed the District
Court that she could not attend the hearing due to her sickness.
- On
4 April 2006 the Regional Court of Appeal, in the presence
of the applicant's lawyer, upheld this judgment. On 31 May 2006
the applicant lodged an appeal in cassation.
- By
a final ruling of 26 September 2006, sent to the applicant on
10 October 2006, the Supreme Court upheld the lower courts'
decisions.
- According
to the Government, between 18 August 1998 and 26 September
2006, there were about twenty four hearings scheduled in the case and
three expert examinations ordered. During the same period of time,
the applicant filed three procedural requests and six appeals, of
which one appeal was returned to the applicant after the period of
fifty days during which the applicant had failed to amend it.
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
period to be taken into consideration began on 18 August 1998
and ended on 10 October 2006. It thus lasted more than eight years
and one month for 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 it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government maintained that the proceedings had been complex in that
the applicant had repeatedly adjusted her claims and there had been
three expert examinations ordered. In their view, the
applicant had caused several delays by filing procedural
requests and appeals, and that there had been no significant periods
of inactivity attributable to the domestic courts.
- The
applicant disagreed.
- 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, e.g., Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- In
the case at hand, the Court notes that the
applicant pursued her action claiming compensation arising from her
occupational illness and ensuing damages. The proceedings were
therefore of some importance for her. Nonetheless, the Court does not
find any ground for the domestic courts to deal with this case with
particular urgency vis-à-vis other cases pending before
them.
- As
regards the subject matter of the litigation, the Court finds that
the domestic courts had to establish whether the applicant had
sustained any pecuniary and non-pecuniary damage and, if so, to
calculate the amount of the compensation to be paid.
It notes that the case was to some extent complicated by the
applicant's lodging seven additional claims and the need to conduct
three expert examinations. Nevertheless,
the subject matter of the litigation cannot be considered
particularly complex.
- With
regard to the applicant's conduct, the Court accepts the Government's
argument that there were certain delays attributable to the applicant
(see paragraphs 9 and 11 above). However, in respect of her
procedural requests and properly filed appeals, the Court finds that
she merely exercised her procedural rights and cannot be blamed for
using the avenues available to her under the domestic law in order to
protect her interests (see, Silin v. Ukraine, no. 23926/02,
§ 29, 13 July 2006).
- As to the conduct of the
domestic courts, the Court notes that
the main delay in the proceedings took place when the first-instance
court took about seven years and three months to decide on the
applicant's case, in the absence of any pertinent justification for
such a protracted period of time.
- 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. 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 COMPLAINTS
- The
applicant further complained under Article 6 § 1 of
the Convention that she had not been given notice of the hearing held
in her absence on 21 November 2005. Under the same heading, she
complained that on 4 April 2006 she had not been given
opportunity to argue in support of her case herself and the first and
second instance courts disregarded her evidence. Relying on Article 1
Protocol No. 12, the applicant complained that during the proceedings
she had been discriminated against on economic basis.
- Having
carefully examined the applicant's submissions 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article
35 §§ 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 UAH 376,725 (EUR 52,742) in respect of
non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 1,100
under that head.
B. Costs and expenses
- The
applicant also claimed UAH 4,079 (EUR 571) for the costs
and expenses incurred before the domestic courts.
- The
Government contested the claim.
- 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 information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
as there is no indication that they were necessarily incurred.
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 in respect of the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 1,100 (one thousand one hundred euros) in respect of
non-pecuniary damage, 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 on 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mirjana Lazarova Trajkovska
Deputy
Registrar President
