FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42341/06
by Iryna Maksymivna ZHYVODYOR
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 27 September 2011 as a Committee composed of:
Boštjan M. Zupančič, President,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 6 October 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Iryna Maksymivna Zhyvodyor, is a Ukrainian national who was born in 1969 and lives in Rivne. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
On 3 May 2000 the applicant’s husband, a pilot, was killed in an aircraft accident.
First set of proceedings
On 8 November 2000 the applicant instituted proceedings in the Rivne Court against the company U., her late husband’s employer, and the authorities seeking invalidation of the results of the investigation into the circumstances of the aircraft accident.
On 21 May 2002 the court partly allowed the applicant’s claims.
Second set of proceedings
On 28 November 2000 the applicant instituted proceedings in the Rivne Court against the company seeking recalculation of payments due to her and her children in connection with the death of her husband.
According to the Government, between 28 November 2000 and 21 October 2002 the proceedings had been actually suspended pending the outcome of the first set of proceedings.
On 21 October 2002 the court scheduled the first hearing in the applicant’s case.
On 11 July 2003 the court partly allowed the applicant’s claims.
On 22 January 2004 the Rivne Regional Court of Appeal quashed that judgment, awarded the applicant 3,158.11 Ukrainian hryvnias (UAH)[1] in arrears for the payments due to her children and rejected the remainder of her claims as unsubstantiated.
On 20 February 2004 the applicant appealed in cassation.
On 18 March 2004 the judgment of 22 January 2004 was enforced in full.
On 28 March 2006 the Supreme Court scheduled the first hearing in the applicant’s case.
On 20 April 2006 the Supreme Court rejected the applicant’s appeal in cassation as unsubstantiated.
COMPLAINT
The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of the second set of proceedings. She also complained under the same provisions that the compensation awarded to her in the framework of those proceedings was insufficient.
THE LAW
1. The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of the second set of proceedings. The Court, which is master of the characterisation to be given in law to the facts of the case, considers that the applicant’s complaint falls to be examined solely under 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...”
The Government submitted that the six months term started to run from 18 March 2004 and thus the application was to be rejected as lodged out of time. In the Government’s view, the period to be taken into consideration lasted from 21 October 2002 (when the court scheduled the first hearing in the case) to 18 March 2004 (when the judgment of 22 January 2004 was enforced in full) during which time there were no delays attributable to the domestic authorities.
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).
Turning to the circumstances of the present case, the Court notes that the period to be taken into consideration in respect of the second set of proceedings began on 28 November 2000 and ended on 20 April 2006 (when the Supreme Court delivered the final decision in the case). Therefore, the Court considers that the complaint was introduced on time (6 October 2006). The proceedings thus lasted for about five years and five months before the courts of three instances.
The Court notes that there was a delay before the first instance court and the cassation instance of about four years. While the delay before the first instance court may be explained by the need to wait for the outcome of the first set of proceedings, which was decisive, according to the Government, for the applicant’s special pension claims, the delay before the Supreme Court remains unjustified. However, the Court notes that the overall length of the proceedings does not appear to be excessive. Furthermore, the judgment by which the applicant’s claims were partly allowed and which was eventually confirmed by the higher courts, was enforced within less then three months after it had become final (22 January 2004).
Therefore, the Court finds that the overall duration of the proceedings did not in itself exceed what may be considered “reasonable”.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. The applicant complained under Articles 6 § 1 and 13 of the Convention that the compensation awarded to her by the domestic courts was insufficient.
The Court notes that it is not called upon to examine the alleged errors of facts and law committed by the domestic judicial authorities, insofar as no unfairness of the proceedings can be detected and the decisions reached cannot be considered arbitrary. Turning to the circumstances of the present case, the Court notes that the applicant enjoyed the right to adversarial proceedings with participation of interested parties. Within the framework of the proceedings the applicant was able to introduce all necessary arguments defending her interests, and the judicial authorities considered them properly. Having regard to all the material in its possession, the Court finds that this complaint do 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 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
[1]. About 456 euros (EUR)
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