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FIFTH
SECTION
CASE OF MUSIYENKO v. UKRAINE
(Application
no. 26976/06)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Musiyenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26976/06) 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, Mr Oleksandr Ivanovych Musiyenko (“the applicant”),
on 20 June 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
24 June 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 CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1938 and lives in Dzerzhynsk.
- On
an unspecified date in April 1999 the applicant lodged a claim
against the State Company “Dzerzhynskvugillia”
(“the company”, Державне
Підприємство
«Дзержинськвугілля»).
In particular, he claimed damages for a discrepancy in the
calculations of compensation for a professional illness. On 5 April
1999 the Dzerzhynsk City Court (“the City Court”) opened
proceedings on the applicant’s claim.
- On
6 December 1999 the City Court warned the company of a penalty for
its failures to appear before the court.
- On
15 January 2002 the applicant lodged a new claim with the City Court
against the company seeking indexation of his salary.
- Having
been joined on 2 December 2002, the claims were dismissed by the City
Court on 1 July 2004.
- In
the meantime, the applicant had modified his claims four times and
the Dzerzhynsk City Department of the State Insurance Fund for
Industrial Accidents and Diseases joined the proceedings as a second
defendant. Between 7 February 2000 and 30 May 2002, the Court of
Appeal quashed four first-instance judgments and ordered fresh
hearings.
- On
10 February 2005 the Donetsk Regional Court of Appeal (“the
Court of Appeal”) quashed the judgment of 1 July 2004 in
part related to the compensation of a professional illness. The
court, out of UAH 6,028 (EUR 844)
claimed by the applicant for pecuniary and UAH 50,000 (EUR 7,000)
for non-pecuniary damage, awarded the applicant UAH 177 (EUR 25).
The applicant appealed in cassation.
- On
4 June 2007 the Supreme Court, according to the Judicial System Act
(as amended on 22 February 2007), transmitted the applicant’s
appeal to the Kyiv Court of Appeal which, on 9 October 2007, finally
upheld the decisions of 1 July 2004 and 10 February 2005.
- In
the course of the proceedings, two expert examinations were ordered
and a number of procedural rulings were adopted. During the same
period of time, the applicant filed nine procedural requests and
eleven appeals, two of which did not meet procedural requirements.
- According
to the Government, of the seventy one hearings scheduled between 5
April 1999 and 9 October 2007, nineteen were adjourned due to the
company representative’s failure to attend, eleven were
adjourned at request of one or both defendants, six were adjourned at
the applicant’s request, four were adjourned owing to the
presiding judge’s sickness or absence, one was adjourned due to
both parties’ failure to attend, and two were adjourned for
other reasons beyond the parties’ control.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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 contested that argument.
- The
period to be taken into consideration began on 5 April 1999 and ended
on 9 October 2007. It thus lasted more than eight years and six
months for three level of jurisdiction.
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 maintained that the proceedings had been complex in that
the applicant had repeatedly recalculated damages, his additional
action had had to be joined to the original one and the expert
examinations had had to be ordered. In their view, the applicant had
contributed to the length of the proceedings by having filed a number
of the procedural requests and appeals, and, together with the
defendants, had been responsible for the protracted length of the
proceedings. According to the Government, there had been no
significant periods of inactivity attributable to the domestic
courts.
- 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, e.g., Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- Turning
to the present case, the Court notes that the
applicant pursued his action claiming recalculation of the
compensation arising from his professional illness and ensuing
damages. The proceedings were therefore of some importance for him.
Nonetheless, the Court does not find any ground for the domestic
courts to deal with this case with particular urgency vis-à-vis
other cases pending before them.
- The
Court further observes that the case was to some extent
complicated by four subsequent recalculations of the damages claimed
by the applicant and the fact that he submitted a new action which
was joined to the original one. Moreover, the domestic courts had to
establish whether the applicant sustained any pecuniary and
non-pecuniary damage and, if so, to calculate the amount of the
compensation to be paid. Even if the case was
also complicated by the fact that the domestic courts had to order
two expert examinations, the Court
concludes that the subject matter of the litigation cannot be
considered particularly complex.
- With
regard to the applicant’s conduct, the Court accepts the
Government’s argument that there were certain delays
attributable to the applicant (see paragraphs 13 and 14 above): he
requested the adjournment of six hearings, failed to appear at one
hearing and lodged two appeals that did not meet procedural
requirements. However, in respect of his procedural requests and
properly filed appeals, the Court notes that he merely exercised his
procedural rights and cannot be blamed for using the avenues
available to him under the domestic law in order to protect his
interests (see, Silin v. Ukraine, no. 23926/02, §
29, 13 July 2006).
- As
regards the Government’s contention that they were not
responsible for the delays caused by the defendants, the Court
observes that it is for the domestic authorities to constrain the
abusive and dilatory conduct of a party to civil proceedings. In
fact, one of the defendant’s failure to attend court hearings
on a number of occasions significantly protracted the proceedings
(see paragraph 13 above). Although the courts were sufficiently
equipped for ensuring the defendant’s presence in the courtroom
or to consider the case in its absence, there is no indication
whether the measures they took sped up the proceedings in any way
(see, mutatis mutandis, Smirnova v. Ukraine, no.
36655/02, §§ 53 and 69, 8 November 2005). Therefore,
this cannot be considered as exonerating the respondent State as
regards one of the defendant’s conduct.
- As to the conduct of the courts,
the Court notes that the main delays in the proceedings were caused
by the four consecutive remittals of the applicant’s
case for re-examination (see paragraph 9 above).
It recalls in this respect that since the remittal of cases is
usually ordered as a result of errors committed by lower courts, the
repetition of such orders within one set of proceedings discloses a
serious deficiencies in the judicial system (see Wierciszewska v.
Poland, no. 41431/98, § 46, 25 November 2003).
- The
Court also finds lacking due diligence the fact that the examination
of the applicant’s appeal in cassation lasted one year and
eight months, while it is the role of the domestic courts to manage
their proceedings so that they are expeditious and effective.
- 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. Having examined all the material submitted to it, 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 breach of Article 6 § 1.
II. OTHER COMPLAINTS
- The
applicant further complained under Articles 6 § 1 and 13 of the
Convention in respect of the courts’ assessment of evidence and
interpretation of the national law and challenged the outcome of the
proceedings. He also alleged a violation of
Articles 2, 5, 7 and 34 of the Convention and Article 1 of
Protocol No. 1, Article 3 of Protocol No. 4
without any further specification.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession and in so far as the matters
complained of are within its competence, the Court finds that 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 declared
inadmissible as being manifestly ill-founded, pursuant to Article
35 §§ 3 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 EUR 556 in respect of pecuniary and EUR 19,413
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 this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage which cannot be sufficiently
compensated by the sole finding of a violation. Making its assessment
on an equitable basis and having regard to the particular
circumstances of the case, the Court awards the applicant EUR 1,100
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 25 for the 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 claim for costs and expenses in the domestic proceedings
as there is no indication that they were necessarily incurred.
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 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 in respect of the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months EUR
1,100 (one thousand one hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable to the applicant, to be
converted into the national currency of the respondent State at the
rate applicable on 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 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
