FIFTH SECTION
DECISION
Application no. 402/06
Marina Vladimirovna SERGEYEVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 29 November 2011 as a Committee composed of:
Mark Villiger, President,
Ganna Yudkivska,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 2 December 2005,
Having regard to the unilateral declaration submitted by the respondent Government on 17 August 2010 requesting the Court to strike the application out of the list of cases and the Government’s letter of 9 December 2010 supplementing the aforesaid declaration,
Having deliberated, decides as follows:
THE FACTS
The application was lodged by Ms Marina Vladimirovna Sergeyeva, a Ukrainian national who was born in 1975 and lives in Shakhtarsk. The Ukrainian Government (“the Government”) were represented by Ms V. Lutkovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant suffering from a chronic disease (aplastic anemia) was being treated in the State hospital, where she was infected with HIV through contaminated blood transfusion.
In August 2001 she brought a civil claim for damages against the local hospital and other State authorities.
On 17 June 2003 the Voroshilovsky District Court of Donetsk allowed her claim in part and awarded her UAH 100,000 (about EUR 15,410) in compensation for non-pecuniary damage. This judgment was eventually upheld by the Donetsk Regional Court of Appeal and the Supreme Court and the proceedings were completed on 10 February 2006. On 8 June 2006 the applicant was informed about the final decision given by the Supreme Court.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive and challenged their outcome. She further alleged that the Supreme Court’ decision had been taken in her absence.
The applicant finally complained under Article 2 of the Convention that the domestic authorities had failed to take all necessary steps to avoid HIV transmission through blood transfusion.
THE LAW
A. Length of proceedings complaint
By letter dated 17 August 2010, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the complaint. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of Ukraine acknowledge the excessive duration of the civil procedure in the applicant’s case.
I. Valeria Volodymyrivna Lutkovska, the Deputy Minister of Justice of Ukraine, declare that the Government of Ukraine are ready to pay Mrs Maryna Volodymyrivna Sergeyeva ex gratia the sum of 1,400 euros.
The Government of Ukraine therefore invite the Court to strike the application no. 402/06 out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c ) of the Convention.
This sum of 1,400 euros, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this amount within the said three-month period, the Government undertake to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
On 9 December 2010 the Government sent a letter expressing their intent to amend the above declaration with the provision that the ex gratia sum “be converted into the national currency of the respondent State at the rate applicable at the date of settlement”.
The applicant objected to the Government’s declaration.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the matter, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, this part of the application should be struck out of the list.
B. Remainder of the complaints
Having carefully examined the remainder of the applicant’s complaints in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the excessive length of the civil proceedings;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Stephen PhillipsMark Villiger
Deputy RegistrarPresident
Full & Egal Universal Law Academy