FIFTH SECTION
CASE OF DENISOV v. UKRAINE
(Application no. 7822/06)
JUDGMENT
STRASBOURG
28 October 2010
This judgment is final but it may be subject to editorial revision.
In the case of Denisov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 5 October 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 7822/06) 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 Vyacheslav Mikhaylovich Denisov (“the applicant”), on 14 February 2006.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3. On 19 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application is assigned to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1960 and lives in Sebastopol.
5. In January 2001 the applicant lodged a claim with the Nakhimovskyy Court against his former employer, the Akademstroy Company, seeking compensation for pecuniary and non-pecuniary damage as a result of an occupational injury. In the course of the proceedings, he also lodged a similar claim against several local departments of the Social Insurance Fund.
6. On 17 November 2004 the court delivered a judgment in the case. On 27 October 2005 the Sebastopol Court of Appeal quashed it and remitted the case for fresh consideration to the same court.
7. On 16 July 2007 the Nakhimovskyy Court allowed in part the applicant’s claim and awarded him certain amounts in health insurance payment arrears, compensation for non-pecuniary damage and court fees. It also ordered the recalculation of the applicant’s insurance payments.
8. On 31 January 2008 the Court of Appeal quashed the above judgment in the part concerning the award of compensation for non-pecuniary damage and court fees and upheld the remainder of the judgment.
9. On 24 March 2010 the Supreme Court quashed the lower courts’ decisions in the part concerning the award in respect of insurance payments and remitted the case for fresh consideration by the first-instance court, before which the proceedings are still pending.
10. According to the Government, in the course of the proceedings the applicant twice amended his claims. He lodged his appeal in cassation not in accordance with the procedural requirements and the Supreme Court gave him a new time-limit for rectifying it. Five hearings were adjourned as the applicant failed to attend them. Fifteen hearings were adjourned mainly due to the respondents’ failure to attend them or due to the absence of judges. Two forensic expert examinations were ordered by the courts (between 25 September 2001 and 28 February 2002 and between 2 October 2003 and 25 November 2003).
11. The applicant submitted that he had not attended only two hearings, without providing any further details.
THE LAW
I. THE COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS
12. The applicant complained under Article 6 § 1 of the Convention of the excessive duration of the proceedings in his case. The above provision reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within reasonable time by [a] ... tribunal ...”
13. The Government contended that the duration of the proceedings was not excessive and submitted that there was no violation of the Convention in the present case.
14. The Court notes that the proceedings commenced in January 2001 and are still pending before the first instance court, after the Supreme Court’s remittal of the case for fresh consideration. Accordingly, they have lasted for more than nine and a half years so far.
A. Admissibility
15. 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
16. 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).
17. Turning to the facts of the case, the Court notes that the complexity of the case and the conduct of the applicant, who somewhat contributed to the length of the proceedings (see paragraph 10 above), cannot explain their overall duration. On the other hand, it finds that substantial delays in the proceedings, mainly caused by the lengthy examination of the applicant’s claim by the Nakhimovskyy Court between January 2001 and 17 November 2004 (see paragraphs 5-6 above) and by the repeated adjournment of the hearings, were attributable to the domestic courts. The Court therefore concludes that the main responsibility for the protracted length of the proceedings rests with the State.
18. 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, for instance, Pavlyulynets v. Ukraine, no. 70767/01, § 53, 6 September 2005; Moroz and Others v. Ukraine, no. 36545/02, § 62, 21 December 2006; and, more recently, Chubakova v. Ukraine, no. 17674/05, § 16, 18 February 2010).
19. 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. It finds that in the instant case the length of the proceedings has been excessive and has failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention.
II. THE COMPLAINT OF UNFAIRNESS OF THE PROCEEDINGS
20. The applicant also complained under Article 6 § 1 of the Convention of unfairness of the proceedings.
21. The Court notes that the proceedings in the applicant’s case are still pending. It follows that this part of the application must be declared inadmissible for non-exhaustion of the domestic remedies, pursuant to Article 35 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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
23. As regards pecuniary damage, the applicant asked the Court to order the respondents in the domestic proceedings to pay him various health-related benefits with their further recalculation and to reimburse him the cost of repair of his house. He further claimed 160,000[1] Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage caused by the actions of the respondents who, in his opinion, protracted the domestic proceedings.
24. The Government invited the Court to reject the above claims as unsubstantiated.
25. The Court discerns no causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court notes that the applicant must have sustained some non-pecuniary damage as a result of the unreasonably lengthy domestic proceedings. Ruling on an equitable basis, it awards the applicant EUR 2,400 under this head.
B. Costs and expenses
26. The applicant claimed UAH 742.78[2] for postal expenses incurred in the domestic proceedings and the proceedings before the Court. He further asked the Court to oblige the respondents in the domestic proceedings to pay him UAH 1,401.32[3] for the cost of two expert examinations in the domestic proceedings.
27. The Government noted that, according to the receipts provided by the applicant, he had spent UAH 564.25[4] on correspondence with the Court and invited the Court to reject the remainder of the claims.
28. 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 above criteria, the Court awards the applicant EUR 54 for correspondence expenses incurred by him in the proceedings before it.
C. Default interest
29. 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. Declares the applicant’s complaint under Article 6 § 1 of the Convention about the length of the proceedings admissible and the remainder of the application inadmissible;
2. 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 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 54 (fifty four euros) for costs and expenses, plus any tax that may be chargeable on the above amounts, 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsRait Maruste
Deputy Registrar President
[1]. About 15,339 euros (EUR)
[2]. About EUR 71
[3]. About EUR 134
[4]. About EUR 54
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