BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KOZIY v. UKRAINE
(Application
no. 10426/02)
JUDGMENT
STRASBOURG
18
June 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 Koziy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Stanislav
Shevchuk, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 26 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10426/02) 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, Mr Bogdan Volodymyrovych
Koziy (“the applicant”), on 23 February 2002.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- The
applicant complained, inter alia, that the length of the
proceedings concerning his compensation claim was excessive and thus
in violation of Article 6 § 1 of the
Convention.
- By a partial decision of 22 May 2006, the Court decided
to adjourn the examination of the above complaint and declared
the remainder of the application inadmissible. Under the provisions
of Article 29 § 3 of the Convention, it decided
to examine the merits of the adjourned part of the application at the
same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Rokytno. Until August 1996
he worked as a secondary school teacher.
A. The criminal proceedings
- On
25 July 1995 K. hit the applicant and damaged his teeth.
- By
two medical reports of 26 July 1995 and 2 February 1996 the
applicant was found to have sustained minor injuries.
- On
an unspecified date the criminal case was opened against K. and
subsequently referred to the Yavoriv Town Court (“the Yavoriv
court”). In the course of the trial the applicant introduced a
claim for compensation for pecuniary and non-pecuniary damages on
account of his injuries.
- On
7 March 1997 the applicant received from a private dentist an
estimate of the medical treatment which he had to undergo as a result
of his injuries, and submitted it to the court.
- On
16 December 1997 the court found K. guilty of intentional
infliction of minor bodily injuries and sentenced him to one year's
community service. It relied on the medical reports of 26 July
1995 and 2 February 1996.
- The
court further rejected the applicant's claim for compensation on the
ground that it had not been lodged in accordance with the procedural
formalities, and informed him that he could institute civil
proceedings against K.
- The
above judgment was not appealed against and became final.
B. The civil proceedings
- On
30 March 1998 the applicant lodged with the Galytskyy District
Court of Lviv (“the Galytskyy court”) a civil law claim
against K.
- The
court ordered two medical examinations and stayed the proceedings
pending their outcome for the periods of 15 February to
4 March 1999, 27 December 1999 to 21 November
2000, and 26 December 2000 to 21 April 2003. It
also made several unsuccessful inquiries to the local police and
hospital about the applicant's medical documents of 1995.
- From
December 1999 to March 2003 the Lviv Regional Dental Hospital kept
the case file for the purpose of the aforementioned examinations. Due
to the loss of the relevant medical documents and the considerable
lapse of time following the injuries, it found it impossible to
estimate the actual costs of the treatment the applicant had had to
undergo.
- According
to the letter of the Galytskyy court to the applicant dated
13 March 2003, the latter had twice failed to appear for
medical examinations and had failed to notify the court of a change
of his address.
- In
April 2003 the court adjourned the hearing for about a month due to
the defendant's absence.
- On
26 May 2003 the court found in part for the applicant and
ordered K. to pay him 2,273 Ukrainian hryvnyas (UAH)
in compensation for medical expenses as confirmed by the certificate
issued to the applicant by a private dentist on 7 March 1997,
and UAH 1,500
in compensation for non-pecuniary damage. The court based its
judgment on the factual findings of the Yavoriv court in the criminal
case against K.
- The
judgment was not appealed against and became final.
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
Court considers that the applicant's complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
applicant maintained that the period in question began in 1995, when
he instituted criminal proceedings against K.
- The
Government disagreed noting that the Convention had entered into
force in respect of Ukraine on 11 September 1997. They
further contended that the period to be taken into consideration was
confined to the civil proceedings instituted by the applicant on 30
March 1998 and completed by the final judgment of 26 May 2003.
According to the Government, the criminal and civil limbs in the
instant case concerned different facts and differed by their legal
nature and aims pursued. Furthermore, the Government submitted
that the intervals between 15 February and 4 March 1999,
27 December 1999 and 21 November 2000, and 26 December 2000
and 21 April 2003 should be excluded from the overall
length of the civil proceedings, as those had been stayed pending the
outcome of the expert examinations.
- The
Court reiterates that the right to institute criminal proceedings and
to secure the conviction of a third party is not a right which is
included among the rights and freedoms guaranteed by the Convention
(see, for example, Perez v. France [GC],
no. 47287/99, § 70, ECHR 2004-I). Article 6 § 1
may nevertheless apply to those proceedings where the civil limb
remains so closely linked to the criminal limb that the outcome of
the criminal proceedings may be decisive for the civil claims (see,
for example, Calvelli and Ciglio v. Italy, no. 32967/96, § 62,
17 January 2002).
- Turning
to the facts of the present case, the Court notes at the outset that
the applicant lodged his civil claim against K. in the course of the
criminal trial of the latter and sought compensation for his injuries
being the subject of that trial. He later introduced the same claim
separately with the civil court (the Galytskyy court). Although the
criminal court (the Yavoriv court) held that the compensation claim
had been lodged not in accordance with Ukrainian law and the
applicant did not appeal in cassation against that decision, the
Court is satisfied that the criminal proceedings were decisive for
the applicant's civil right for compensation and they, accordingly,
fall within the ambit of Article 6 of the Convention. Thus, the
findings of the criminal court as to the fact that K. had
intentionally inflicted bodily injuries on the applicant were a
precondition for the outcome of the proceedings before the civil
court, which did not consider that aspect of the case afresh.
Therefore, both sets of proceedings were closely linked, if not
strictly interdependent, and the Court considers that it would be
inappropriate to separate these proceedings and to assess their
length in isolation (see the Perez case cited above, §§
70-72, and, a contrario, Serdyuk v. Ukraine,
no. 15002/02, §§ 25-28, 20 September 2007).
- The
Court considers that the period to be taken into consideration began
on 11 September 1997, when the Convention entered into force in
respect of Ukraine. However, in assessing the reasonableness of the
time which had elapsed after that date, it will take into account the
state of proceedings at the time.
- The
Court does not share the Government's opinion that the intervals
during which the proceedings were suspended pending the experts'
reports should be excluded from the overall period to be considered.
It reiterates that an expert examination ordered by a court is one of
the means of establishing or evaluating the factual circumstances of
a case, and therefore constitutes an inherent part of the court
procedure. Moreover, it is within the competence of the court to
decide whether to seek outside advice and to set a time-limit for
receiving it. Consequently, the mere fact that the proceedings were
formally suspended does not exclude the intervals at issue from the
overall duration of the proceedings, the reasonableness of which the
Court will consider (see Dulskiy v. Ukraine, no. 61679/00,
§ 71, 1 June 2006).
- In
view of the foregoing, the Court will take into consideration the
period from 11 September 1997 to 26 May 2003, when the
Galytskyy court finally determined the applicant's civil claim,
excluding the interval between 16 December 1997 and 30 March
1998, when no proceedings were pending. Accordingly, the period to be
taken into consideration is five years and five months.
2. Reasonableness of the length of the proceedings
- The
Government indicated two major factors explaining the overall length
of the proceedings, which it considered not unreasonable: the
behaviour of the applicant, who had allegedly twice failed to appear
for his medical examination and had failed to notify the court about
a change of his address; and repeated requests by the court to the
hospital and the town police for certain documents and results of
expert reports.
- 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, among many other
authorities, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000-VII).
- The
Court observes that the proceedings were of some importance for the
applicant. Nonetheless, it does not find any ground for the domestic
courts to deal with his case with urgency vis-à-vis
other cases pending before them. On the other hand, it sees no reason
to consider the case complex. Its factual side had already been
established within the criminal proceedings, and the task of the
civil court was limited to determining the pecuniary and
non-pecuniary damage sustained by the applicant.
- The
Court notes that of five years and two months, when the case was
before the first-instance civil court, it remained without any
progress for over three years pending the outcome of the medical
examinations and search for the applicant's medical documents, which
all turned out wholly futile. Even if the applicant did indeed fail
twice to appear for his medical examination and to inform the court
about a change of his domicile, the Court does not consider that to
explain the overall length of the proceedings.
- In
sum, having regard to the circumstances of the instant case, the
Court concludes that there was an unreasonable delay in disposing of
the applicant's case, for which the Government did not provide any
acceptable justification.
- There
has accordingly been a violation of Article 6 § 1 of
the Convention.
II. 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 5,000,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. He further claimed EUR 360,000 in
compensation for lost profit, alleging that he could not continue to
work as a teacher as a result of the injuries inflicted on him by K.
- The
Government contested these claims.
- The
Court does not discern any causal link between the alleged violation
and the pecuniary damage claimed; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non-pecuniary damage, and, making its assessment on an equitable
basis, awards him EUR 2,000 in this respect, as required by
Article 41 of the Convention.
B. Costs and expenses
- The
applicant claimed EUR 100 in legal fees, as well as postal and
travel expenses, without submitting any documents in respect of that
claim. He also claimed EUR 9,900 in compensation for the
self-study he had had to do to prepare his case.
- The
Government considered the above claims exorbitant and
unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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. The Court finds that these requirements have not been met in
the present case. It therefore rejects the claim for costs and
expenses.
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;
- Holds that there has been a violation of Article
6 § 1 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 2,000
(two thousand euros) in respect of non-pecuniary damage
to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement, plus any tax
that may be chargeable;
(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 18 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
