FIFTH SECTION
CASE OF PALAMARCHUK v. UKRAINE (no. 2)
(Application no. 17156/05)
JUDGMENT
STRASBOURG
21 October 2010
This judgment is final but it may be subject to editorial revision.
In the case of Palamarchuk v. Ukraine (no. 2),
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mark Villiger, President,
Isabelle Berro-Lefèvre,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 28 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 17156/05) 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 Oleksandr Terentiyovych Palamarchuk (“the applicant”), on 9 April 2005.
2. The applicant was represented by his brother, Mr M.T. Palamarchuk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3. On 21 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 was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1961 and lives in Vinnytsya.
5. In 1983, while undergoing training at the SU-26 company, the applicant had an accident. As a result of this accident he was classed as a disabled person.
First set of proceedings
6. On 20 November 1998 the applicant instituted proceedings in the Leninsky District Court of Vinnytsya against the successor of the company responsible for the accident, Vinnytsya specialised collective company no. 26, (“the company”), seeking a ruling obliging the latter to allocate him money to purchase a car for disabled people. He also claimed compensation for non-pecuniary damage allegedly caused to him. The final decision in the case was given by the Supreme Court on 29 December 2002.
Second set of proceedings
7. On 5 June 2001 the applicant instituted proceedings in the Leninsky District Court of Vinnytsya seeking a ruling obliging the company to allocate him money to purchase a car for disabled people.
8. On 8 November 2002 the court declined to consider this claim.
9. On 15 January 2003 the Vinnitsa Regional Court of Appeal quashed the ruling of the first-instance court and remitted it to the first-instance court.
10. On 29 December 2003 the court partly allowed the applicant’s claim. On 19 April 2004 the Vinnytsya Regional Court upheld the judgment of the first-instance court.
11. On 16 November 2006 the Supreme Court upheld the decisions of the lower courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12. The applicant complained that the length of the second set of 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 ...”
13. The Government contested that argument.
14. The period to be taken into consideration began on 5 June 2001 and ended on 16 November 2006. It thus lasted about five years and four months for three levels of jurisdiction.
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. 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).
18. 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
19. The applicant complained under Articles 6 § 1, 13 and 17 of the Convention about unfairness and outcome of the proceedings. He further complained under Article 6 § 1 about excessive length of the first set of proceedings. The applicant also complained under Article 2 of the Convention that he was not provided with the car he whished. He finally complained under Article 1 of Protocol No. 1 about the outcome of the proceedings. He also referred to certain provisions of the UN Convention on the Rights of Disabled Persons.
20. 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.
21. 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
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. The applicant claimed 19,696 euros (EUR) in respect of pecuniary damage. He further claimed EUR 37,515 in respect of non-pecuniary damage.
24. The Government contested these claims.
25. 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, it awards the applicant EUR 600 in respect of non-pecuniary damage.
B. Costs and expenses
26. The applicant, who was not represented by a lawyer before the Court, also claimed EUR 91 for legal costs. In addition he claimed UAH 395.96 for other expenses. This amount included; inter alia, UAH 150 (about EUR 14) for postage and UAH 210 (about EUR 20) in respect of expenses for translation. In support, the applicant provided copies of the receipts evidencing his expenses for postage for a total amount of UAH 27.52 (about EUR 3) and receipts evidencing payment of UAH 210 (about EUR 20) to a translation agency.
27. The Government contested these 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 documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 23 for costs and expenses.
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 complaint concerning the excessive length of the second set of proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the second set of proceedings;
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 600 (six hundred euros) in respect of non-pecuniary damage and EUR 23 (twenty-three euros) in respect of costs and expenses, 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 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 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsMark Villiger
Deputy RegistrarPresident
Full & Egal Universal Law Academy