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FIFTH
SECTION
CASE OF BENDRYT v. UKRAINE
(Application
no. 1661/04)
JUDGMENT
STRASBOURG
10
December 2009
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 Bendryt v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 1661/04) 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 Oleksiy Vasylyovych Bendryt (“the
applicant”), on 2 December 2003. The applicant
was represented by his father, Mr V.S. Bendryt.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
19 January 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
I. PROCEEDINGS CONCERNING THE APPLICANT’S CIVIL CLAIM
- The
applicant was born in 1977 and lives in the village of Turbiv,
Ukraine.
- On
an unspecified date criminal proceedings were instituted against Mr
L. for inflicting bodily harm on the applicant.
- On
11 February 1999 the applicant lodged a civil claim against Mr L.
with the Lipovetsky Court (“the court”) claiming
compensation for pecuniary and non-pecuniary damage.
- On
18 August 1999 the court convicted Mr L. of inflicting bodily harm on
the applicant and sentenced him to two years’ imprisonment.
Under the same judgment Mr L. was exempted from serving his sentence
under the Amnesty Act. The court also partly allowed the applicant’s
civil claim.
- On
6 October 1999 the Vinnitsa Regional Court
quashed the judgment of 18 August 1999 and remitted the case for
fresh consideration.
- On
18 December 2000 the court convicted Mr L. of inflicting bodily
injury on the applicant and sentenced him to one year’s
correctional labour. He was exempted from serving his sentence under
the Amnesty Act. By the same judgment the court partly allowed the
applicant’s civil claim.
- On
31 January 2001 the Vinnitsa Regional Court quashed the part of the
judgment of 18 December 2000 concerning the applicant’s civil
claim and remitted it for fresh consideration. By the same ruling the
regional court upheld the rest of the judgment.
- On
8 August 2001 the Supreme Court dismissed a request by the applicant
for leave to appeal in cassation against the decisions of the lower
courts.
- On
26 March 2003 the court partly allowed the applicant’s civil
claim and awarded him 1,731.11 Ukrainian hryvnias (UAH) in
compensation for pecuniary damage and UAH 3,000 in compensation for
non-pecuniary damage.
- On
23 June 2003 the Vinnitsa Regional Court of Appeal quashed the
judgment of 26 March 2003 and remitted the case for fresh
consideration.
- On
2 December 2003 the applicant lodged an appeal in cassation with the
Supreme Court.
- On
27 February 2006 the Supreme Court gave a final decision on the case,
by which it upheld the judgment of 26 March 2003.
- The
applicant lodged an extraordinary appeal against the final judgment
of the Supreme Court. On 26 February 2007 the Supreme Court refused
to grant the applicant’s request to reopen proceedings in his
case.
II. ENFORCEMENT OF THE JUDGMENT OF 26 MARCH 2003
- On
17 May 2007 the Lipovetsky Bailiffs’ Service instituted
enforcement proceedings in respect of the judgment of 26 March 2003.
- On
an unspecified date the applicant instituted proceedings in the
Vinnitsa Circuit Administrative Court challenging the bailiffs for
inactivity in enforcing the judgment of 26 March 2003. On 24 December
2007 the court refused to consider the applicants’ complaint
since it had no jurisdiction to consider it. The court indicated in
its ruling that the applicant had the right to challenge the
bailiffs’ inactivity before the Lipovetsky Court. The applicant
appealed against the ruling of 24 December 2007. On 7 April 2009
the Kyiv Administrative Court of Appeal declined to consider his
appeal. The applicant appealed in cassation. The proceedings before
the Higher Administrative Court of Appeal are still pending.
- The
judgment of 26 March 2003 remains unenforced due to Mr L.’s
lack of funds.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the length of the
proceedings concerning his compensation claim had been incompatible
with the “reasonable time” requirement laid down in
Article 6 § 1 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...”
A. Admissibility
- The
Government submitted that Article 6 § 1 was
applicable only in respect to the proceedings which lasted in the
period after 31 January 2001, when the sentence imposed on
Mr L. was upheld by the Vinnitsa
Regional Court.
- The
applicant disagreed.
- The Court notes that the applicant lodged his civil
claim against Mr L. in the course of the criminal trial of the latter
and sought compensation for his injuries, which were the subject of
that trial. The Court finds that the proceedings at issue fall within
the ambit of Article 6 of the Convention (see Baglay v.
Ukraine, no. 22431/02, § 25, 8 November 2005). Therefore, it
rejects the Government’s objection.
- The
Court notes that the 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 contested the applicant’s complaint. They submitted
that some periods of delay in the proceedings had been attributable
to the applicant and Mr L. and that there had been no periods of
inactivity attributable to the State authorities.
- The
applicant disagreed.
- The Court notes that the period to be taken into
consideration began on 11 February 1999 and ended on 27 February 2006
when the Supreme Court gave a final decision. Therefore, the
proceedings in question lasted more than seven years.
The case was considered by the courts at three levels of
jurisdiction.
- 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).
- In
the instant case it does not appear that the issue under
consideration was particularly complex or that any long periods of
delay could be attributed to the applicant. The Court observes that
the proceedings were of some importance for him.
- The
Court finds that a number of delays (in
particular, the remittals of the case for fresh consideration and
lengthy consideration of the applicant’s appeal in cassation by
the Supreme Court) are attributable to the respondent State.
- 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, § 46, and Baglay,
cited above, § 33).
- 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 complained under Articles 6 and 13 of the Convention that
the sentence imposed on Mr L. was too lenient and the compensation
awarded to him was insufficient. In his submissions, the applicant
also complained, without relying on any Article of the Convention or
Protocols, about the non-enforcement of the judgment given in his
favour against Mr L. He finally relied on Article 2 referring to the
same facts.
- Having
carefully examined the remainder of 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 4,731.11 Ukrainian hryvnias (UAH) in respect of
pecuniary damage and 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the applicant’s 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, as required by Article
41 of the Convention it awards him EUR 1,200 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed UAH 2,121.11 (about
EUR 185) for costs and expenses. In support of his claims, he
produced, inter alia, a receipt
evidencing payment of UAH 1,150 (about EUR 100) made to a lawyer for
assistance in preparing his observations to the Court and a postal
receipt of UAH 21.11 (about EUR 2) for mailing his letter to the
Court.
- The
Government had no objections to paying the applicant his postal
expenses of UAH 21.11. They contested the remainder of the claims
under this head.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 110 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;
3. 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 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage and
EUR 110 (one hundred and ten) 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 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
