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N.B. v. UKRAINE - 17945/02 [2008] ECHR 252 (3 April 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/252.html
Cite as:
[2008] ECHR 252
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FIFTH
SECTION
CASE OF N.B. v. UKRAINE
(Application
no. 17945/02)
JUDGMENT
STRASBOURG
3
April 2008
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 N.B. v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Karel Jungwiert,
Volodymyr
Butkevych,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 17945/02) 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 N.B. (“the applicant”), on 15
March 2002. The President of the Chamber acceded to the
applicant's request not to have her name disclosed (Rule 47 § 3
of the Rules of Court).
The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
On
22 March 2007 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1984 and lives in Kherson.
On
24 May 1999 the applicant was attacked by Ms P., Ms F., Ms M. and Ms
B, who were all minors. She sustained various injuries.
In
November 1999, in the course of criminal proceedings pending
before the Komsomolskyy District Court of Kherson (hereafter “the
Komsomolskyy Court”), the applicant lodged against the four
defendants a claim for compensation in respect of pecuniary and
non-pecuniary damage.
1. Criminal proceedings against Ms P., Ms B. and Ms F.
On
15 March 2000 the Komsomolskyy Court found Ms P., Ms B., and Ms F.
guilty of aggravated hooliganism and sentenced them to three, one and
one years' imprisonment, respectively. By the same decision the
applicant's compensation claim was allowed in part and the statutory
representatives of the convicted were ordered to pay the applicant
UAH 16,578.
On
16 May 2000 the Kherson Regional Court quashed the decision of
the first instance court on the ground that the sentence was too
lenient.
On
3 August 2000 the Komsomolskyy Court again found the
defendants guilty and sentenced them to four, three and three years'
imprisonment, respectively. By the same decision the court amnestied
Ms B. and Ms F. It also awarded the applicant UAH 13,578
in compensation.
On
3 October 2000 the Kherson Regional Court rejected the
applicant's appeal against the grant of amnesty, but quashed the
decision of 3 August 2000 concerning the compensation award and
remitted that part for a fresh consideration by a civil court.
On
5 April 2001 the Presidium of the Kherson Regional Court, following
the protest of its President initiated by the applicant,
quashed the decisions of 3 August and 3 October 2000 to the
extent that they concerned the conviction of Ms B. and Ms F. as the
amnesty had been applied wrongly. The Presidium remitted that part of
the case for a fresh consideration.
On
26 July 2001 the Komsomolskyy Court released Ms B. from
detention. On an unspecified date the proceedings against Ms B. were
disjoined on the grounds that she had absconded.
On
17 August 2001 the Komsomolskyy Court found Ms F. guilty of
aggravated hooliganism and sentenced her to two years and two months'
imprisonment. The court applied an amnesty to her. It also ordered Ms
P. and the statutory representative of Ms F. to pay the applicant UAH
1,580 in compensation for pecuniary and UAH 10,000 for non-pecuniary
damage (UAH 11,580
in total).
On
16 October 2001 the Kherson Regional Court of Appeal quashed the
decision of 17 August 2001 concerning the award in respect of
pecuniary damage and remitted that part for a fresh consideration to
a civil court.
On
28 November 2001 the applicant's representative lodged a cassation
appeal against the judgments of 17 August and 16 October
2001 requesting the court, in particular, to examine the compensation
claim in the criminal proceedings and to increase the amount awarded.
On
23 May 2002 the panel of three judges of the Supreme Court
allowed in part the cassation appeal and quashed the decision of
17 August 2001 concerning the award in respect of
non-pecuniary damage. That part of the case was also remitted for a
fresh consideration to a civil court.
2. Criminal proceedings against Ms M.
On
4 October 2002 the Komsomolskyy Court found Ms M. guilty of
aggravated hooliganism and sentenced her to three years'
imprisonment. It refused to deal with the applicant's compensation
claim because her representative had failed to appear before the
court.
3. Civil proceedings
Following
the decision of the Kherson Regional Court of 3 October 2000
(see paragraph 10), the applicant's compensation claim was remitted
to the Komsomolskyy Court.
On
17 April 2001 the court found in part for the applicant and
ordered Ms P. and the statutory representatives of Ms B. and Ms
F. to pay the applicant UAH 46,578
in compensation for pecuniary and non pecuniary damage.
On
30 May 2001 the Kherson Regional Court, allowing the
applicant's appeal, quashed the decision of 17 April 2001 and
remitted the case for fresh consideration. It held that the first
instance court had failed to consider all the arguments of the
parties.
As
a result of the decision of the Kherson Regional Court of Appeal of
16 October 2001 in the criminal proceedings (see paragraph 14
above), the question of compensation by Ms P. and Ms F. for pecuniary
damage was again pending before the Komsomolskyy Court.
On
31 October and 4 December 2001 the court refused to
consider the applicant's claims on the ground that she, a minor at
the time, did not have full legal capacity.
As
a result of the ruling of the Supreme Court of 23 May 2002 (see
paragraph 16 above), the question of compensation by Ms P. and Ms F
for non-pecuniary damage was also pending before the Komsomolskyy
Court.
On
8 September 2002 the hearings were resumed.
On
14 November 2002 the applicant lodged a civil claim against Ms M.
On
17 September 2003 the court found in part for the applicant and
ordered Ms P., Ms F. and Ms M. to pay the applicant UAH 21,664
compensation.
On
18 February 2004 the Kherson Regional Court of Appeal upheld the
judgment of 17 September 2003.
On
16 May 2006 the Supreme Court rejected the applicant's cassation
appeal, thereby terminating the proceedings.
4. Enforcement proceedings
On
14 January 2002 the applicant lodged with the Komsomolskyy
District Bailiffs' Service (hereafter “the Bailiffs”) a
writ of execution for the judgment of 17 August 2001.
On
21 August 2002 the Bailiffs returned the writ to the applicant
due to the debtors' lack of funds.
On
3 March 2004 the Bailiffs instituted enforcement proceedings in
respect of the judgment of 17 September 2003.
On
28 July 2004 the proceedings were discontinued due to the
debtors' lack of funds.
In
September 2004 the Komsomolskyy Court refused to deal with the
applicant's complaint against the Bailiffs as it had been lodged out
of time.
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 account began in November 1999, when the
applicant lodged her claim for compensation in the criminal
proceedings, and ended on 16 May 2006 (see Tomasi v. France,
judgment of 27 August 1992, Series A no. 241 A,
§ 124). It thus lasted six years and seven months for three
levels 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 submitted that the domestic courts considered the case
within a reasonable time and without substantial delays attributable
to the State. It outlined that the protracted length of the
proceedings was due to the complexity of the case and the parties'
repetitive appeals.
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, Tomasi, cited above, § 125, and Acquaviva
v. France, judgment of 21 November 1995, Series A
no. 333 A, § 53).
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 v. France [GC], no. 30979/96, ECHR
2000-VII, and Baglay v. Ukraine, no. 22431/02, 8
November 2005).
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. In
particular, the Court notes that five of the applicant's six appeals
or cassation appears were successful. 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 ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Articles 3 and 6 § 1
of the Convention about the outcome and unfairness of the
proceedings. In particular, she disagreed with the criminal
qualification of the acts of the defendants and objected to the act
of amnesty applied in the case. She also challenged the amounts of
compensation awarded by the courts. The applicant finally complained
under Articles 6 § 1 of the Convention about the
failure of the State authorities to enforce the judgment of 17
September 2003.
However,
in the light of all the materials in its possession, the Court finds
that they 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 declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 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 UAH 59,688 (EUR 8,333) in respect of pecuniary and
EUR 100,000 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 this claim. On
the other hand, it awards the applicant EUR 600 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed UAH 426 (EUR 60) for the costs and expenses
incurred before the Court.
The
Government did not object to granting the applicant this amount.
The
Court considers that the sum claimed should be awarded in full.
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;
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, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
600 (six hundred euros) in respect of non-pecuniary damage;
(ii) EUR
60 (sixty euros) for costs and expenses;
(iii) plus
any tax that may be chargeable to the applicant on the above amounts;
(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 3 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
