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FIFTH
SECTION
CASE OF ROSTUNOVA v. UKRAINE
(Application
no. 20165/04)
JUDGMENT
STRASBOURG
18
February 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rostunova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Zdravka Kalaydjieva, judges,
Mykhaylo
Buromenskiy, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20165/04) 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, Ms Lyudmila Alekseyevna Rostunova (“the
applicant”), on 16 May 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
12 November 2007 the
Court decided to give notice of the application to the Government. It
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Kyiv.
- On
15 November 2000 the applicant instituted proceedings in the
Podilskyy District Court of Kyiv against the Doktor Aibolit Private
Clinic seeking compensation for pecuniary and non-pecuniary damage
allegedly caused to her by inappropriate dental treatment. Mr S., the
doctor who had treated the applicant, joined the proceedings as a
third party.
- On
14 December 2000 the court ordered a forensic examination, which was
completed in July 2001.
- On
26 September 2001 Mr S. lodged a counter-claim against the applicant
seeking compensation for damage allegedly caused to his reputation.
On an unspecified date the counter-claim was disjoined from the
proceedings.
- On
30 April 2002 the court found against the applicant.
- On
23 September 2002, following an appeal by the applicant, the Kyiv
Court of Appeal quashed that judgment and remitted the case to the
same court for fresh consideration.
- On
21 November 2002 the applicant requested the court to join the Cabot
Private Clinic to the case as a co-defendant. On an unspecified date
that request was granted.
- On
3 July 2003 the Podilskyy Court declined to consider the applicant’s
claim because she had failed to appear before the court on that day.
- On
11 September 2003 the Court of Appeal upheld that ruling.
- On
1 June 2005, following an appeal in cassation by the applicant, the
Supreme Court quashed the decisions of 3 July and 11 September
2003 and remitted the case for fresh consideration on the merits to
the Podilskyy Court.
- On
11 May 2007 the Podilskyy Court rejected the applicant’s claims
as unsubstantiated.
- On
11 June 2007 the applicant lodged an appeal.
- On
19 March 2009 the Court of Appeal upheld the judgment of 11 May
2007.
-
On 7 August 2009 the Supreme Court rejected the applicant’s
request for leave to appeal in cassation as unsubstantiated.
- The
applicant modified her claims on three occasions and lodged several
requests which concerned various procedural matters, including audio
recording of hearings, withdrawal of judges, securing of evidence and
so on. Out of thirty-five hearings held in the course of the
proceedings, nine were adjourned on account of the absence of a
judge, three were adjourned because of the unavailability of audio
equipment used to record hearings, two were adjourned at the request
of the applicant, five were adjourned owing to the defendants’
failure to appear, one was adjourned owing to both parties’
failure to appear, and two were adjourned owing to witnesses’
failure to appear.
THE LAW
I. SCOPE OF THE CASE
- The Court notes that, after the communication of the
application to the respondent Government, the applicant introduced
new complaints under Articles 2 and 14 of the Convention.
- In the Court’s view, the new complaints are not
an elaboration of the applicants’ original complaints lodged
about five years earlier and on which the parties have commented. The
Court considers, therefore, that it is not appropriate now to take
these matters up separately (see Piryanik v. Ukraine,
no. 75788/01, § 20, 19 April 2005).
II. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which, in so far as
relevant, reads as follows:
Article
6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- 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
- The
Government submitted that the proceedings had been lengthy on account
of the complexity of the case and the conduct of the applicant, who
had lodged various appeals and procedural requests and had modified
her claims on a number of occasions. In the Government’s view
there were no delays attributable to the domestic authorities.
- The
applicant disagreed.
- The
Court notes that the period to be taken into consideration began on
15 November 2000 and lasted until 7 August 2009. It thus lasted for
about eight years and nine months.
- 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).
- The Court considers that, although the applicant
contributed to the overall length of the proceedings by lodging
appeals and procedural requests and by modifying her claims, the main
responsibility for the protracted length of the proceedings rests
with the domestic courts. The Court can see no valid reason why the
proceedings, which did not involve any complicated factual or legal
issues, should have remained uncompleted for such a substantial
period of time.
- 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).
- Having
examined all the materials submitted to it and in view of the above
considerations, 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 violation of Article 6 § 1 of
the Convention.
III. OTHER COMPLAINTS
- The
applicant complained under Article 3 of the Convention that the
allegedly inappropriate dental treatment amounted to torture. The
applicant also complained under Articles 6 § 1
and 13 of the Convention about the outcome of the proceedings. She
further complained under Article 1 of Protocol No. 1 on account of
the outcome of the proceedings.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within the Court’s competence, it finds that
the evidence discloses no 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 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The applicant claimed 3,272,379 euros (EUR) in respect
of non-pecuniary damage and EUR 72,076 in compensation for pecuniary
damage.
- The Government contested these claims.
- 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 1,600 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 840 for costs and expenses incurred before
the domestic courts.
- The
Government contested the claim.
- 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 information in its possession and the above criteria, the Court
rejects the above claim.
C. Default interest
- 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
- Declares the complaint under Article 6 § 1
concerning the excessive length of the proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 1,600 (one
thousand six hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
