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FIFTH
SECTION
CASE OF KISELYOVA v. UKRAINE
(Application
no. 21047/02)
JUDGMENT
STRASBOURG
22
November 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 Kiselyova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R.
Maruste,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21047/02) 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, Mrs Valentyna Mykolayivna Kiselyova (“the
applicant”), on 16 March 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
8 February 2007 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 1954 and lives in the town of Sukhodolsk,
Lugansk region.
- On
31 March 1997 the Krasnodon Court awarded the applicant's husband UAH
27,669 from his former employer, the State Mining Company
“Duvannaya”, in compensation for health damage inflicted
by a work accident.
- In
May 1998 the applicant's husband died.
- On
27 June 2000 the Presidium of the Lugansk Regional Court, upon the
prosecutor's protest lodged under the extraordinary review procedure,
quashed the judgment of 31 March 1997 and remitted the case for a
fresh consideration. The outcome of these proceedings is unknown.
- On
21 August 2000 the applicant instituted proceedings in the Krasnodon
Court against the State Mining Company “Duvannaya”
claiming compensation for health damage allegedly due to her late
husband.
- Between
September 2000 and November 2001 seven out of nineteen hearings were
adjourned due to the respondent's representative failure to appear
before the court.
- On
18 March 2002 the Krasnodon Court found against the applicant.
- On
4 July 2002 the Lugansk Regional Court of Appeal (former Lugansk
Regional Court) upheld this judgment.
- On
2 August 2002 the applicant lodged with the Krasnodon Court her
appeal in cassation. She was requested by the court's secretary to
pay the postal expenses for sending her case-file to the Supreme
Court.
- On
27 November 2002 the Supreme Court returned the case-file to the
Krasnodon Court as the applicant also challenged the ruling of 27
June 2000, which was not attached to the case-file.
- On
24 October 2003 the Supreme Court returned the case-file to the
Krasnodon Court as its ruling of 27 November 2002 was not fulfilled.
The Supreme Court further explained that the ruling of 27 June 2000
could not be appealed within the pending proceedings.
- On
30 October 2003 the case-file was sent back to the Krasnodon Court.
- On
12 April 2004 the Krasnodon Court allowed the applicant until 27 May
2004 to rectify the shortcomings of her appeal in cassation.
Following the applicant's request, the time-limit was extended until
25 June 2004.
- On
2 August 2004 the case-file was transferred to the Supreme Court.
- On
6 November 2006 the Supreme Court rejected the applicant's appeal in
cassation.
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 21 August 2000 and
ended on 6 November 2006. It thus lasted more than six years and two
months 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 submitted that the domestic courts considered the case
within a reasonable time and without substantial delays attributable
to the State.
- The
applicant did not comment on this.
- 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 length of the proceedings exceeded six years,
from which the cassation proceedings lasted more than four years. The
Court observes that though some period of delay could be attributed
to the fact that the applicant's appeal in cassation had to be
rectified, the case-file was repeatedly returned by the Supreme Court
due to the first instance court's failure to assure that the appeal
in cassation and the case-file were properly prepared. Furthermore,
the case was pending before the Supreme Court awaiting for a final
decision for two years and three months.
- The
Court further notes that significant delays were caused by repetitive
adjournments of the case by the first instance court due to the
respondent's representative failure to appear before the court.
However, the domestic court failed to take any steps to assure his
presence in order to proceed with the case.
- 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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
31. The
applicant also complained that the unreasonable length of the
proceedings was in violation of Article 13 of the Convention.
- Having
regard to its findings under Article 6 § 1 (see paragraphs
21 -22 above), the Court concludes that this complaint is
admissible, but considers that it is not necessary to rule whether,
in this case, there has been a violation of Article 13 of the
Convention (see, Kukharchuk v. Ukraine, no. 10437/02,
§§ 39-40, 10 August 2006).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant further complained under Article 6 §
1 of the Convention about the quashing of the
final judgment of 31 March 1997 under the extraordinary review
procedure. She also complained under Articles 12 and 14 of the
Convention that she was the victim of discrimination as the widow of
a mineworker. She finally complained under Article 5 of Protocol No.7
about the impossibility to receive compensation allegedly due to her
late husband.
- However,
in the light of all the materials in its possession, and in so far
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 or its Protocols.
- 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.
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 UAH 50,000 (EUR 7,350) in respect of non-pecuniary
damage.
- The
Government contested the claim as unsubstantiated.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 600 under
that head.
B. Costs and expenses
- In
the present case the applicant failed to submit any claims; 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
- 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 that there is no need to examine
separately the applicant's complaint under Article 13 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 600 (six
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, 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 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 22 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
