(Application no. 9724/03)
1 February 2007
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 Litvinyuk v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 8 January 2007,
Delivers the following judgment, which was adopted on that date:
THE CIRCUMSTANCES OF THE CASE
5. On 24 July 1995 the applicant was knocked down by a trolley bus. She suffered an open craniocerebral injury and a brain contusion. As a result of these injuries the applicant received a status of a disabled person with the lowest degree of disability (третя група інвалідності).
6. In January 1996 the applicant instituted proceedings in the Tsentralnyy District Court against the Simferopol Trolley-Bus Company, claiming compensation for pecuniary and non-pecuniary damage to her health caused by the accident. In particular, as a part of pecuniary damage the applicant claimed compensation for medicaments, additional nutrition, sanatorium treatment and transport expenses, and compensation for the loss of earnings.
8. On 17 September 1997 the Supreme Court of the ARC (“the SARC”) upheld this judgment.
9. On 19 December 1997 the SARC, upon the protest of its Head (initiated by the applicant), quashed the above judgments under the extraordinary review procedure in the part concerning compensation for medicaments, additional nutrition, sanatorium treatment and transport expenses and in the part concerning compensation for the loss of earnings and remitted the case for a fresh consideration.
10. On 21 March 1998 the hearing was postponed because the defendant failed to appear.
11. On 20 April 1998 the court hearing took place.
12. On 23 June 1998, upon the applicant's request, the case was transferred to the Simferopolskyy District Court.
13. On 26 August 1998 the case was transferred to another judge.
14. On 4 November 1998 the court ordered a bookkeeping expertise. The expertise was performed by 30 November 1998.
15. On 22 December 1998 the hearing was postponed as the parties failed to appear.
16. On 20 January 1999 the court hearing took place.
17. On 9 February 1999 the court found in part for the applicant. The applicant was awarded UAH 4,259.683 in compensation for additional nutrition and UAH 220.624 in compensation for transport expenses. The remainder of the applicant's claims was rejected.
18. On 29 March 1999 the SARC quashed this judgment in part concerning compensation for the loss of earnings. The court failed to state in the operational part that the quashed part of the case should be remitted for fresh consideration, however, in the text of the judgment it expressly held that during the new examination the first instance court should take into consideration the findings of the SARC.
19. On 7 July 2000 the SARC, upon the protest of its Head (initiated by the applicant) quashed the above judgments in the part concerning compensation for additional nutrition and sanatorium treatment under the extraordinary procedure and remitted the case for a fresh consideration.
20. On 16 November 2000 the court ordered a bookkeeping expertise. The expertise was completed by 31 June 2001.
21. On 21 May 2001 the judge withdrew from the case.
22. On 6 November 2001 and 18 December 2002 two hearings took place.
23. On 27 March 2002 the hearing was adjourned because the parties failed to appear. From the materials submitted by the parties it is unclear whether the applicant was duly informed about this hearing.
24. On 22 April 2002 the Simferopolskiy District Court left the applicant's case without consideration because the applicant had twice failed to appear in court without plausible reason.
25. The applicant appealed against this decision, asking inter alia that her case be considered on the merits by the higher court because the examination by the lower courts had already been too lengthy.
26. On 8 July 2002 the Court of Appeal of the ARC (the former SARC, hereafter the CAARC) quashed this decision and remitted the case for a fresh consideration to the first instance court. The applicant appealed against this decision in cassation as the court failed to consider her request to transfer her case to the higher court.
27. On 31 October 2002 the applicant was provided with a time-limit to submit her cassation appeal in compliance with procedural requirements.
28. On 16 December 2002 the Simferopolskiy District Court returned the applicant's appeal in cassation against this decision for non-compliance with the procedural formalities prescribed by law.
29. On 24 June 2003 the CAARC upheld this decision.
I. COMPLAINT ABOUT THE LENGTH OF PROCEEDINGS
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
37. The Court notes that part of the proceedings complained of relates to the period prior to 11 September 1997, the date on which the Convention came into force in respect of Ukraine. Therefore, this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.
1. Period to be taken into consideration
39. The Court notes that after the date on which the Convention came into force in respect of Ukraine the proceedings lasted until 17 September 1997 when the final decision in the applicant's case was adopted. On 19 December 1997 this decision was quashed and part of the case was sent back to the first instance court for fresh examination. The proceedings are still pending. The length of the proceedings within the Court's competence is, therefore, so far, nine years and twenty two days. However, in assessing the reasonableness of the time that elapsed after 11 September 1997, account must be taken of the state of proceedings on that date (see Milošević v. the former Yugoslav Republic of Macedonia, no. 15056/02, § 21, 20 April 2006; Styranowski v. Poland, no. 28616/95, § 46, ECHR 1998-VIII; Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, p. 18, § 53).
2. Reasonableness of the length of the proceedings
II. OTHER COMPLAINTS
50. The applicant complained under Article 6 § 1 of the Convention of an unfair hearing and the outcome of the proceedings in her cases. The applicant further complained that the failure of the courts to consider her complaints within a reasonable time and to award her appropriate compensation violated her rights under Articles 2 and 3 of the Convention. The applicant finally complained under Article 14 of the Convention that she had been discriminated on the ground of her social and property status.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
53. 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.”
55. The Government contended that the applicant's claims were exorbitant and unsubstantiated.
56. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non-pecuniary damage, and, deciding on an equitable basis, awards her EUR 2,400 in this respect.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant's complaint under Article 6 § 1 of the Convention about the length of proceedings in her civil case admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(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 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 110 (one hundred ten euros) in respect of costs and expenses to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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;
4. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 1 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
1. ECU 2,322.22.
2. ECU 5,043.72.
3. 984.13 euros (“EUR”).
4. EUR 50.97.
5. Around 32,684.70 euros (“EUR”).
6. Around EUR 110.