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FIFTH
SECTION
CASE OF LYUTOV v. UKRAINE
(Application
no. 32038/04)
JUDGMENT
STRASBOURG
11
December 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 Lyutov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Renate Jaeger,
Mark
Villiger,
Mirjana Lazarova Trajkovska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32038/04) 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 Sergey
Ivanovich Lyutov (“the applicant”), on 16 August
2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
9 November 2007 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Sergey Ivanovich Lyutov, was born in 1956 and lives in
the town of Horlovka, Ukraine.
- On
22 November 1993 the applicant had a work-related accident
in which he sustained multiple burns. On 24 November 1993
the applicant’s employer, the State company “Artemshaktobud”
(“the company"), issued an accident report
which stated that the applicant had been partly responsible for the
accident.
- In
1994 the applicant received the status of a partially disabled person
with a medium degree of disability. The company paid the applicant
a single-payment accident allowance and awarded him compensation
for loss of earnings, to be paid monthly.
- In
May 1995 the applicant instituted proceedings against the Company in
the Nikitovsky District Court of Horlovka, asking the court
to establish that he was not responsible for the accident, to
recalculate the amounts of the above payments and compensate him for
the losses sustained due to the erroneous calculation. The applicant
also claimed compensation for non-pecuniary damage caused to him as a
result of the accident. On 4 December 1995 the court
allowed the applicant’s claims in part.
- On
28 March 1996 the Deputy Prosecutor of the Donetsk Region lodged a
protest against the above judgment with the Presidium of the
Donetsk Regional Court. On 10 April 1996 the latter allowed
the protest, quashed the above decision and remitted the case
for reconsideration to the first-instance court.
- On
22 July 1996 the Nikitovsky District Court of Horlovka
allowed the applicant’s claims in part. The Deputy President of
the Donetsk Regional Court lodged a protest against that
decision with the Presidium of the Donetsk Regional Court.
On 11 November 1998 the decision was quashed and the
case was remitted to the first-instance court for reconsideration on
the ground that, inter alia, the first-instance court had
erred in the calculation of the payments due to the applicant.
- On
11 November 1999 the Nikitovsky District Court of Donetsk
allowed the applicant’s claims in part. The company appealed
against that decision. On 24 January 2000 it was quashed by
the Donetsk Regional Court on the ground that the first-instance
court had erred in its calculation of the payments due to the
applicant. Therefore the case was remitted to the first-instance
court for a fresh consideration.
- On
7 June 2000 the Nikitovsky District Court of Horlovka
allowed the applicant’s claims in part. The company appealed
against this decision. On 13 November 2000 the Donetsk
Regional Court quashed the judgment of 7 June 2000 on the
ground that the first-instance court had erred in the calculation of
the payments due to the applicant. By the same ruling the court of
appeal remitted the case to the first-instance court.
- In
April 2001 the applicant lodged an additional claim, requesting the
court to amend the report of 24 November 1993.
- On
17 January 2001 the applicant lodged a request with the Donetsk
Regional Court of Appeal for his case to be remitted to another court
for consideration.
- On
6 March 2002 the Donetsk Regional Court of Appeal, acting
as a first-instance court, considered the applicant’s case
and allowed his claims in part.
- Dissatisfied
that the court of appeal had not allowed all of his claims, the
applicant lodged an appeal in cassation against the decision on 27
May 2002. According to the law in force at the
material time, the cassation appeal was filed with the first-instance
court, which was to verify its compliance with procedural rules.
- According
to the records provided by the Government, on 23 October 2003
the Supreme Court refused to consider the applicant’s appeal in
cassation on the ground that he had failed to comply with procedural
formalities prescribed by Ukrainian law.
-
On 3 December 2002 the court of appeal renewed the time-limit for
lodging an appeal in cassation and the applicant’s appeal in
cassation was transferred to the Supreme Court.
- On
14 April 2004 the Supreme Court upheld the judgment given
by the court of appeal.
- The
amount awarded was paid on 8 July 2004.
- According
to the records provided by the Government, out of around
forty-three hearings scheduled between November 1998 and April 2004,
nine were adjourned due to the absence, or at the request, of the
defendant’s representative. One was adjourned because of the
absence of both parties. Four were adjourned because of the
absence of the applicant’s lawyer; two were adjourned due to
the applicant’s absence or at his request. One hearing was
adjourned due to the judge’s illness. In the course of the
proceedings falling within the Court’s competence, the
applicant sought the transfer of his case to another court on three
occasions.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings was
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...”
A. Admissibility
- The
Court notes that the applicant’s 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
1. Period to be taken into consideration
- The
applicant took his case to the court
instituted proceedings in May 1995, however, the Court’s
jurisdiction ratione temporis
covers only the period after the entry into force of the Convention
with respect to Ukraine, on 11 September 1997.
Nevertheless, 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 Miloševiÿ
v. the former Yugoslav Republic of Macedonia,
no. 15056/02, § 21, 20 April2006).
- The
Court reiterates that it can take into account only those periods
when the case was actually pending before the courts, thus excluding
from the calculation those periods between the adoption of the final
and binding judgments and their revocation in the course of
extraordinary proceedings (see Markin v.
Russia (dec.), no.
59502/00, 16 September 2004, and Pavlyulynets
v. Ukraine, no. 70767/01,
§§ 41-42, 6 September 2005). Therefore the period
from 11 September 1997 to 11 November 1998 cannot be taken into
account.
- The
judicial proceedings ended in April 2004, when the Supreme
Court gave a final judgment in the applicant’s case. The
enforcement proceedings in his civil case were terminated within
three months after the judgment of 6 March 2002 became
final.
26. The
Court recalls that the court proceedings and the enforcement
proceedings are stages one and two in the total course of proceedings
(see Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 197, ECHR 2006 ...).
Therefore, the enforcement proceedings should not be dissociated from
the action and the proceedings are to be examined in their entirety
(see Estima Jorge v. Portugal, 21 April 1998,
§ 35, Reports of Judgments and Decisions 1998 II,
and Sika
v. Slovakia, no.
2132/02, §§ 24-27, 13 June 2006).
- The
Court considers that the proceedings in the applicant’s case
ended with the full enforcement of the judgment in the applicant’s
favour. The Court notes that the length
of the enforcement proceedings in the applicant’s case was
three months, during which there was no discernible period of
inactivity which can be attributed to the domestic authorities. The
length of the judicial proceedings falling within the Court’s
competence was five years and five months.
2. Reasonableness of the length of the judicial
proceedings before the domestic courts
- The Government contested the applicant’s
complaint, stating that there were no significant periods of
inactivity attributable to the State. They maintained that the case
had been complex and that the judicial authorities had acted with due
diligence. According to the Government, the parties were responsible
for several delays, in particular, by making numerous demands to
provide additional documents and hold examinations and by failing
to appear before the domestic courts. They further maintained that
the applicant, while lodging his appeals with the higher courts, had
failed to comply with the procedural formalities prescribed by
law. They further submitted that by lodging his request for the
transfer of the case to another court, the applicant had delayed the
proceedings. The Government finally maintained that the length of
proceedings in the applicant’s case was not unreasonable.
- 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, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The Court considers that the litigation was not
particularly complex, but had a certain degree of factual complexity
regarding the calculation of the payments due to the applicant.
- As for the issues that were at stake for the
applicant, the Court notes that following the work-related accident
the applicant was seriously injured and was classed as disabled. The
payments due to him were of undeniable importance to him (see
Litvinyuk v. Ukraine, no. 9724/03, § 47,
1 February 2007).
- As
regards the conduct of the parties, the Court finds that the
applicant’s conduct alone cannot explain the overall length of
the proceedings before the domestic courts.
- The
Court notes that a major delay was caused by the repetitive remittals
of the case for fresh consideration as a result
of insufficient analysis by the trial court (see paragraphs
9-13 above). It reiterates that a repetitive re-examination of claims
within one set of proceedings can disclose a serious deficiency in
the domestic judicial system (see Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
Although the Court has previously rejected some cases concerning
repeated remittals, having observed that the judicial authorities had
acted diligently in handling a complex matter (see Zhurba v. Ukraine
(dec.), no. 11215/03, 19 June 2007, and
Bespalov v. Ukraine (dec.), no. 11484/05,
15 January 2008), it cannot find a similar justification
for remittals in the present case. Furthermore, the Court considers
that a number of other delays (adjournments of
hearings on account of the defendant’s absence and
handling by the Supreme Court of the applicant’s
cassation appeal) should be attributed to the domestic authorities.
- 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, for example, Yakymenko v.
Ukraine, no. 19142/03, §§
32-39, 29 May 2008; Pavlyulynets v. Ukraine,
no. 70767/01, §§ 49-50, 6 September 2005, and
Golovko v. Ukraine, no. 39161/02, § 50,
1 February 2007).
- 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
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 §1 of the
Convention about the outcome of the proceedings in his case. He also
complained under Article 1 of Protocol No. 1 about the lengthy
non enforcement of the judgment of 6 March 2002 given in his
favour.
- In
his submissions lodged in May 2008 the applicant complained that by
quashing the final and binding court decisions
of 4 December 1995 and 22 July 1996 the domestic courts had violated
his rights guaranteed by Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and insofar 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 §§ 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 7,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government found this claim unsubstantiated and exorbitant.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR
800 under that head.
B. Costs and expenses
- The
applicant did not submit any claim for costs and expenses; the Court
therefore makes no award under this head.
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 under Article 6 §1
of the Convention 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, EUR 800 (eight
hundred euros) in respect of non-pecuniary damage, 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 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 on11 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
