FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29066/06
by Antonina Anatolyevna LEMESH
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 March 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 5 July 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Antonina Anatolyevna Lemesh, is a Russian national who was born in Kazakhstan and lives in Sweden.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. First set of proceedings
On 9 August 1997 the applicant’s husband, who worked for a private enterprise, D., died as the result of a work-related accident.
On 2 December 1998, following the prosecutors’ investigation into his death, the Zhovtneve Court found Mr S.Y. and Mr S.G., employees of the D. enterprise, guilty of breach of the domestic legislation on labour safety which had led to the above accident, sentenced them to different terms of imprisonment and amnestied Mr S.G. as he had committed the crime unintentionally. The court also ordered the D. enterprise to pay the applicant 5,000 Ukrainian hryvnias (“UAH”) for non-pecuniary damage compensation.
On 24 December 1998 the Mykolayiv Regional Court of Appeal (“Court of Appeal”), acting as a court of cassation, upheld the above judgment having amnestied Mr S.Y. as well.
The judgment of 2 December 1998 remains partly unenforced due to the lack of funds of the D. enterprise.
B. Second set of proceedings
On an unspecified date in 2002 the applicant lodged a claim with the District Court against the local Bailiffs and Mr S.Y. seeking compensation for non-pecuniary damage inflicted on her as the result of partial non-enforcement of the judgment of 2 December 1998.
On 15 March 2004 the court returned the claim unexamined as the parties had repeatedly failed to attend its hearings. The applicant did not appeal.
C. Third set of proceedings
On 8 February 2002 the Korabelnyy District Court of Mykolayiv (“District Court”) allowed in part the applicant’s claim (lodged in February 1999) against the D. enterprise and ordered the latter to pay her UAH 43,326 in compensation for pecuniary damage caused by the loss of her husband. The court also ordered the D. enterprise to pay the applicant certain monthly payments for raising her children until the age of majority or completion of their studies. Finally, it ordered the D. enterprise to pay the applicant UAH 400 for legal assistance.
On 24 April 2002 the Court of Appeal partly amended the above judgment having reduced the amount of compensation for pecuniary damage and having ruled that the monthly payments were to be paid by the D. enterprise till 1 April 2001 only (after that date, pursuant to the domestic law, it was the Social Insurance Fund (“Fund”) which had to make further payments to the applicant).
The judgment of 8 February 2002, as amended by the ruling of 24 April 2002, remains partly unenforced due to the lack of funds of the D. enterprise.
D. Fourth set of proceedings
In June 2002 the applicant lodged a request with the District Court seeking a finding that the work-related accident had led to her husband’s death. She also asked the court to declare that the Fund had to make all payments due to her as from 1 April 2001.
On 24 October 2002 the court found that the work-related accident had led to her husband’s death and accepted the applicant’s withdrawal of her claim against the Fund.
On 9 January 2003 (upheld on 8 January 2004 by the Supreme Court) the Court of Appeal quashed the above decisions and returned the applicant’s request unexamined as it had to be examined by the courts in the course of contentious proceedings.
E. Fifth set of proceedings
On 28 January 2004 the applicant lodged a claim against Mr S.Y. seeking a court finding that the work-related accident had led to her husband’s death. In March 2004 she amended her claim having asked the courts to order the Fund to pay all arrears due to her starting from 1 April 2001 and compensation for non-pecuniary damage.
On 21 November 2005 the District Court ordered the Fund to pay the applicant UAH 7,063.80 in arrears and UAH 1,000 in compensation for non-pecuniary damage.
On 27 February 2006 the Court of Appeal partly amended the above judgment having increased the payments due to the applicant to UAH 10,777 and non-pecuniary damage to UAH 1,500.
The judgment of 21 November 2005, as amended by the judgment of 27 February 2006, remained unenforced in part of UAH 1,500 (non-pecuniary damage compensation) until September 2007.
COMPLAINTS
1. The applicant complains under Articles 6 § 1 and 13 of the Convention about excessive length of the fifth set of proceedings including lengthy failure to fully enforce the judgment of 21 November 2005, as amended by the judgment of 27 February 2006.
2. The applicant also complains under Article 2 of the Convention about a violation of her husband’s right to life considering that not all persons allegedly guilty of his death as the result of the work-related accident had been prosecuted. Relying on Articles 6 § 1 and 13 of the Convention, the applicant further complains about unfavourable outcome of all sets of proceedings, about unreasonable length of the first to fourth sets of proceedings, about full or partial non-enforcement of the judgments of 2 December 1998 and 8 February 2002 and raises the same complaints in respect of her children.
THE LAW
A. The length of the proceedings
The applicant complains that the length of the fifth set of proceedings, including the lengthy failure to fully enforce the judgment of 21 November 2005, as amended by the judgment of 27 February 2006, was incompatible with the reasonable time requirement provided 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 fair ... hearing within a reasonable time by [a] ... tribunal ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
The Court, having examined the remainder of the applicant’s complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, 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 rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning excessive length of the fifth set of proceedings including the lengthy failure to fully enforce the judgment of 21 November 2005, as amended by the judgment of 27 February 2006;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy