British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
KHAZHEVSKIY v. UKRAINE - 28297/08 [2012] ECHR 728 (19 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/728.html
Cite as:
[2012] ECHR 728
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF KHAZHEVSKIY v. UKRAINE
(Application
no. 28297/08)
JUDGMENT
STRASBOURG
19 April
2012
This
judgment is final but it may be subject to editorial revision.
In the case of Khazhevskiy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 28297/08) 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 Afanasiy Danilovich Khazhevskiy (“the applicant”),
on 28 May 2008.
The
Ukrainian Government (“the Government”) were represented
by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
On
18 October 2010 the
application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Girnyy.
A. Proceedings against the applicant’s former
employers (first set)
In
1999 a medical commission established that the applicant had lost 40%
of his working ability due to an occupational disease received during
his work in coal mines.
In
January 2000 the applicant instituted civil proceedings in the
Leninskyy District Court of Kirovograd (“the Leninskyy Court”)
against his former employers, two coal mining companies, seeking
recovery of the occupational disability allowance.
On
6 March 2009, following two remittals of the case to the
first-instance court for fresh examination, the proceedings were
completed by a final ruling of the Supreme Court rejecting the
applicant’s request for leave to appeal in cassation. As a
result, the applicant’s claim was allowed in part.
In
early April 2009 the above ruling was served on the applicant.
According
to the Government, the proceedings were delayed for a year and three
months due to financial expert examinations conducted three times at
the applicant’s request and for six months due to some
procedural flaws in his appeals which had to be rectified.
B. Proceedings against a gardening society
Being
an owner of a land plot, the applicant was a member of a gardening
society, a non-profit organisation taking care of the area in
question.
In
October 2006 he instituted civil proceedings in the Leninskyy Court
against the aforementioned society considering that it had not
complied with its duties.
By
their decisions of 19 April, 18 May and 17 December 2007, the
Leninskyy Court, the Kirovograd Regional Court of Appeal and the
Supreme Court, respectively, found against the applicant.
THE LAW
I. COMPLAINTS CONCERNING THE LENGTH OF THE FIRST SET OF
PROCEEDINGS AND THE LACK OF EFFECTIVE DOMESTIC REMEDIES IN THAT
RESPECT
The applicant complained that the
length of the first set of proceedings had been incompatible with the
“reasonable time” requirement and that he had no
effective domestic remedy in that regard. He relied on Articles 6 §
1 and 13 of the Convention which read as follows:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal ...”
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government contested that argument stating that the examination of
the case had been somewhat complicated and that the applicant had
contributed to its length by his procedural requests and appeals,
sometimes not in accordance with the procedure.
The
proceedings, which began in January 2000 and ended in April 2009,
lasted for over nine years in three judicial instances.
A. Admissibility
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 6 § 1 of the Convention
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).
Turning
to the facts of the present case, the Court does not discern any
particular complexity in the subject-matter of the litigation. At the
same time, it notes that the dispute over the occupational disability
allowance was important to the applicant.
The
Court acknowledges that the applicant contributed, to a certain
extent, to the length of the proceedings, in particular by filing
requests and procedurally inconsistent appeals (see paragraph 9
above). It however considers that his behaviour alone cannot justify
the overall length of the proceedings.
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, cited above).
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 of the
Convention.
2. Article 13 of the Convention
23. The
Court has also frequently found violations of Article 13 of the
Convention, stating that the current Ukrainian legislation does not
provide a remedy for complaints concerning the length of proceedings
(see Efimenko v. Ukraine, no. 55870/00, 18 July 2006).
In the present case the Court finds no reason to depart from that
case-law.
24. There
has accordingly been a breach of Article 13 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained, relying on Articles 6 § 1 and 13 of the
Convention, about the alleged unfairness of both sets of proceedings.
He also complained, with reference to Article 1 of Protocol No. 1,
that the amount of the occupational disease allowance awarded to him
had been too low.
Having
carefully considered the applicant’s submissions as to the
complaints under that head in the light of all the material in its
possession, the Court finds that, in so far as the matters complained
of are within its competence, 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 (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 EUR 100,000 in respect of pecuniary and
non-pecuniary damage.
The
Government contested the claim.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR
3,400 under that head.
B. Costs and expenses
The
applicant did not claim any costs and expenses under the procedure;
the Court therefore makes no award.
C. Default interest
The
Court considers it appropriate that the default interest rate 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 complaints under Articles 6 §
1 and 13 of the Convention concerning the length of proceedings and
the lack of effective remedies in that respect admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within
three months, EUR 3,400 (three thousand four hundred
euros), 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, in respect of non-pecuniary
damage;
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
