FIFTH SECTION

CASE OF KISELYOVA v. UKRAINE

(Application no. 8944/07)

JUDGMENT

STRASBOURG

10 February 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kiselyova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mirjana Lazarova Trajkovska, President,
	Zdravka Kalaydjieva,
	Julia Laffranque, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 18 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 8944/07) 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 Lyubov Grigoryevna Kiselyova (“the applicant”), on 18 February 2007.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  On 5 May 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
4.  The applicant was born in 1942 and lives in Kherson.
5.  On 18 August 1998 she lodged a claim with the Komsomolsky District Court of Kherson (“the District Court”) against the Komsomolsky District Hospital of Kherson seeking compensation for occupational illness and non-pecuniary damage.
6.  Between 23 September 1998 and 22 February 2005, the applicant lodged seven additional claims that were joined to the main one amounting overall to UAH 102,225 (14,312 euros, EUR).
7.  On 15 June 2005 the applicant lodged a complaint with the Kherson Regional Court of Appeal (“the Regional Court of Appeal”) seeking to speed up the proceedings in her case. There is no indication whether and, if so, how the court replied.
8.  At a hearing of 21 November 2005 the District Court, in the presence of the applicant's lawyer, partly allowed the applicant's claims. On 14 December 2005 the applicant informed the District Court that she could not attend the hearing due to her sickness.
9.  On 4 April 2006 the Regional Court of Appeal, in the presence of the applicant's lawyer, upheld this judgment. On 31 May 2006 the applicant lodged an appeal in cassation.
10.  By a final ruling of 26 September 2006, sent to the applicant on 10 October 2006, the Supreme Court upheld the lower courts' decisions.
11.  According to the Government, between 18 August 1998 and 26 September 2006, there were about twenty four hearings scheduled in the case and three expert examinations ordered. During the same period of time, the applicant filed three procedural requests and six appeals, of which one appeal was returned to the applicant after the period of fifty days during which the applicant had failed to amend it.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12.  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...”
13.  The Government contested that argument.
14.  The period to be taken into consideration began on 18 August 1998 and ended on 10 October 2006. It thus lasted more than eight years and one month for three levels of jurisdiction.
A.  Admissibility
15.  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
16.  The Government maintained that the proceedings had been complex in that the applicant had repeatedly adjusted her claims and there had been three expert examinations ordered. In their view, the applicant had caused several delays by filing procedural requests and appeals, and that there had been no significant periods of inactivity attributable to the domestic courts.
17.  The applicant disagreed.
18.  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).
19.  In the case at hand, the Court notes that the applicant pursued her action claiming compensation arising from her occupational illness and ensuing damages. The proceedings were therefore of some importance for her. 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.
20.  As regards the subject matter of the litigation, the Court finds that the domestic courts had to establish whether the applicant had sustained any pecuniary and non-pecuniary damage and, if so, to calculate the amount of the compensation to be paid. It notes that the case was to some extent complicated by the applicant's lodging seven additional claims and the need to conduct three expert examinations. Nevertheless, the subject matter of the litigation cannot be considered particularly complex.
21.  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 9 and 11 above). However, in respect of her procedural requests and properly filed appeals, the Court finds that she merely exercised her procedural rights and cannot be blamed for using the avenues available to her under the domestic law in order to protect her interests (see, Silin v. Ukraine, no. 23926/02, § 29, 13 July 2006).
22.  As to the conduct of the domestic courts, the Court notes that the main delay in the proceedings took place when the first-instance court took about seven years and three months to decide on the applicant's case, in the absence of any pertinent justification for such a protracted period of time.
23.  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.
24.  There has accordingly been a breach of Article 6 § 1.
II.  OTHER COMPLAINTS
25.  The applicant further complained under Article 6 § 1 of the Convention that she had not been given notice of the hearing held in her absence on 21 November 2005. Under the same heading, she complained that on 4 April 2006 she had not been given opportunity to argue in support of her case herself and the first and second instance courts disregarded her evidence. Relying on Article 1 Protocol No. 12, the applicant complained that during the proceedings she had been discriminated against on economic basis.
26.  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.
27.  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
28.  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
29.  The applicant claimed UAH 376,725 (EUR 52,742) in respect of non-pecuniary damage.
30.  The Government contested this claim.
31.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 1,100 under that head.
B.  Costs and expenses
32.  The applicant also claimed UAH 4,079 (EUR 571) for the costs and expenses incurred before the domestic courts.
33.  The Government contested the claim.
34.  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
35.  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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings;

3.  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 amount 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 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mirjana Lazarova Trajkovska
	Deputy Registrar	President