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FIFTH
SECTION
CASE OF CHERNYSH v. UKRAINE
(Application
no. 53443/07)
JUDGMENT
STRASBOURG
24
November 2011
In the case of Chernysh v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 53443/07) 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 Tatyana Nikodimovna Chernysh (“the applicant”),
on 20 November 2007.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
5 January 2009 the
Court 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
applicant was born in 1949 and lives in Mykolayivka.
- On
10 September 1993 the applicant’s husband was killed in a
traffic accident.
- On
5 June 2000 the applicant instituted proceedings in the Slavyansk
Court against the companies D. and Y. seeking compensation for damage
caused by the death of her husband.
- On
6 December 2000 the court rejected the applicant’s claims.
- On
8 February 2001 the Donetsk Regional Court quashed that judgment and
remitted the case to the first instance court for fresh
consideration.
- On
16 June 2004 the court found in part for the applicant.
- On
21 October 2004 the Donetsk Regional Court of Appeal upheld that
judgment.
- On
19 November 2004 the applicant appealed in cassation.
- On
28 April 2007 the Supreme Court transferred the applicant’s
appeal in cassation to the Kyiv Court of Appeal for consideration
pursuant to legislative amendments of 22 February 2007 aimed at
accelerating cassation proceedings.
- On
14 August 2007 the Kyiv Court of Appeal scheduled a hearing in the
case.
- On
28 August 2007 the Kyiv Court of Appeal quashed the judgments in the
case and rejected the applicant’s claims as lodged out of time.
- According
to the Government, out of thirty court hearings scheduled in the
applicant’s case two were adjourned due to the applicant’s
failure to appear, seventeen were adjourned due to failure to appear
of the respondents’ representatives, two were adjourned due to
witnesses’ failure to appear, one hearing was adjourned due to
illness of the court’s secretary, one hearing was adjourned due
to the judge’s illness, two hearings were adjourned due to the
judge’s vacations, one hearing was adjourned due to the
expiration of the judge’s term of office. On five occasions the
courts sent warnings to the companies D. and Y. concerning their
representatives’ failure to appear at the court hearings.
- The
applicant disagreed in part with the Government’s submissions.
In particular, she contended that the court hearings in her case had
been adjourned only due to the respondents’ failure to appear.
THE LAW
I. 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 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 ...”
- The
Government disagreed. They submitted that there had been no
substantial delays attributable to the domestic authorities. In the
Government’s view, the adjournment of hearings ordered by the
courts on their own motion had been justified by the interests of
justice, while the parties had contributed to the length of the
proceedings by failing to appear and lodging appeals and petitions.
The Government submitted that the protraction of the proceedings
before the Supreme Court had been justified by its heavy workload,
however in 2007 that problem had been solved by the introduction of
amendments into the domestic legislation.
- The
period to be taken into consideration began in June 2000 and ended on
28 August 2007. It thus lasted for about seven years and two months.
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
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 notes that the majority of the hearings in the applicant’s
case were adjourned due to the respondents’ representatives’
failure to appear, there is nothing to suggest that the courts could
not have considered the case in their absence (see Golovko v.
Ukraine, no. 39161/02, § 59, 1 February 2007). The
Court also observes that further five adjournments were due to
absence of a judge or a court secretary. As regards the legislative
amendments referred to by the Government, the Court notes by the time
they were introduced (paragraph 12 above), the applicant’s
cassation appeal had been waiting for the Supreme Court’s
consideration over two years.
- In
the light of the foregoing, the Court concludes that the primary
responsibility for the delays in the proceedings rests with the
courts. It considers that the length of the proceedings was excessive
and there has accordingly been a breach of the “reasonable
time” requirement of Article 6 § 1.
II. OTHER COMPLAINTS
- The
applicant also complained under Article 6 § 1 of the Convention
about the outcome of the proceedings.
- However,
having regard to all the material in its possession, the Court finds
that this complaint 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 must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 42,950.14 Ukrainian hryvnias (UAH)
in respect of pecuniary damage and UAH 4,000
in respect of non-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 that claim. On
the other hand, making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicant EUR 1,200 for non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 206,34
for the cost of correspondence with the Court and UAH 213.8
for costs and expenses incurred in the domestic proceedings.
- The
Government left the matter to the Court’s discretion.
- 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
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 18 for the cost
of correspondence with the Court.
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 applicant’s complaint under
Article 6 § 1 of the Convention 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 EUR
1,200 for non-pecuniary damage and EUR 18 for costs and expenses,
plus any tax that may be chargeable, to be converted into the
national currency 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič Deputy
Registrar President
