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FIFTH
SECTION
CASE OF PALAMARCHUK v. UKRAINE
(Application
no. 28585/04)
JUDGMENT
STRASBOURG
15 July 2010
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 Palamarchuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 28585/04) 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 Oleksandr Terentiyovych Palamarchuk (“the
applicant”), on 2 June 2004. The
applicant was represented before the Court by his brother, Mr Mykola
Terentiyovych Palamarchuk.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
16 February 2009 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 was born in 1961 and lives in Vinnitsa.
- In
1983, while undergoing training at the SU-26 company, the applicant
had an accident. As a result of this accident he was classed as a
disabled person.
- Starting
in 2000 the applicant instituted four sets of proceedings against the
Vinnitsa specialised collective company no. 26 (“the company”),
the successor of the company responsible for the accident, in the
Zamostyansky District Court of Vinnitsa (“District Court”).
1. First set of proceedings
- On
21 September 2000 the applicant instituted proceedings against the
company, seeking a ruling to oblige the company to provide him with a
wheelchair for home use and a wheelchair for outside use. The
applicant also claimed compensation for non-pecuniary damage.
- By
its judgment of 19 June 2001 the District Court ordered the company
to provide the applicant with two wheelchairs. It also partly allowed
the applicant’s claim for compensation. By an additional
judgment of 3 July 2001 the District Court amended its previous
judgment and ruled that the company should provide the applicant with
all components for wheelchairs.
- On
23 October 2001 the Vinnitsa Regional Court of Appeal quashed the
above judgments and remitted the case for a new consideration to the
District Court. The applicant appealed in cassation. In the period
from November 2001 to December 2002 the District Court mainly
examined the admissibility of the applicant’s appeal in
cassation against the ruling of 23 October 2001.
- In
December 2002 the applicant’s appeal in cassation was sent to
the Supreme Court. On 22 December 2003 the latter dismissed it.
- Between
30 June 2004 and 11 April 2005 no hearings were scheduled.
- Between
12 April 2005 and 27 March 2006 the District Court scheduled some ten
hearings, two of them were adjourned on account of absence of the
company’s representative, two other on account of the judge’s
absence. Three hearings were adjourned since the applicant’s
representative failed to appear.
- Between
21 April 2006 and 04 August 2006 no hearings were held.
- In
the period from 6 November 2006 to 12 December 2007 the District
Court scheduled some twelve hearings. Three of them were adjourned
because the judge was involved in other proceedings and one on
account of his illness. Three hearings were adjourned because the
Fund’s representative failed to appear, four due to the absence
of the company’s representative.
- On
12 December 2007 the case was transferred to another judge.
- Between
13 December 2007 and 14 May 2009 the District Court scheduled some
thirteen hearings, six of them were adjourned since the judge was ill
and one because he was involved in other hearings.
- On
15 May 2009 the District Court left the applicant’s claim
without consideration. The applicant in his submissions alleged that
he learned about that decision from the Government’s
observations sent to him in July 2009.
2. Second set of proceedings
- On
18 February 2002 the applicant instituted proceedings against the
company. The applicant claimed nursery allowance and
compensation for non-pecuniary damage caused to him by the company.
- The
first hearing was held on 16 December 2003. On unspecified dates the
prosecutor and the Vinnitsa Regional Department of the State Social
Security Fund (“Fund”) joined the proceedings.
- According
to the records provided by the Government, of around sixty-five
listed hearings three were adjourned since the Fund’s
representative failed to appear. On three occasions the hearings were
adjourned as the prosecutor failed to appear. Six hearings were
adjourned since the judge was involved in other proceedings and seven
on account of the judge’s illness. Nine hearings were adjourned
since the applicant or his representative failed to appear or at
their request. Seventeen hearings were adjourned because of the
absence of the company’s representative or at his request.
- On
3 June 2009 the District Court left the applicant’s claim
without consideration. The applicant in his submissions alleged that
he learned about that decision from the Government’s
observations which were sent to him in July 2009.
3. Third set of proceedings
- On
21 March 2001 the applicant lodged a complaint with the District
Court challenging the actions of the head of the company. He alleged
that the latter had unlawfully refused to send him for a medical
examination in order to establish that he needed anti-bedsore
treatment.
- On
23 July 2001 the applicant challenged the judge sitting in his case.
On 26 July 2001 the District Court dismissed his request. The
applicant appealed. On 3 September 2001 the Vinnitsa Regional Court
of Appeal dismissed the applicant’s appeal.
- Between
14 September 2001 and 20 December 2003 the District Court scheduled
three hearings, two of them were adjourned at the company’s
request. The applicant challenged a judge sitting in his case on
several occasions. On 19 December 2001, 21 August 2002 and 16 May
2003 his requests were granted and the case was transferred to
another judge.
- On
21 December 2003 the prosecutor joined the proceeding. On an
unspecified date the Fund joined the proceedings as a third party.
- There
were no hearings scheduled between 8 November 2007 and 18 December
2008.
- Out
of around sixty-one hearings listed in the period from 21 December
2003 to 14 May 2009, five were adjourned because the Fund’s
representative failed to appear. Nine hearings were adjourned due to
the absence, or at the request, of the applicant or his
representative. On ten occasions the judge failed to appear because
he was ill, on eight occasions since he was involved in other
proceedings, and on one occasion as he was on holiday. Seventeen
hearings were adjourned because the company’s representative
failed to appear or at his request.
- On
12 December 2008 the case was transferred to another judge.
- On
15 May 2009 the District Court left the applicant’s claim
without consideration. The applicant submitted that he had learned
about that decision from the Government’s observations sent to
him in July 2009.
4. Fourth set of proceedings
- On
3 May 2001 the applicant instituted proceedings against the company.
He challenged the company’s refusal to provide him with
bedclothes and claimed compensation.
- On
13 June 2001 the District Court left his claim without consideration
due to its procedural shortcomings.
- On
6 November 2001 the Vinnitsa Regional Court of Appeal quashed the
ruling of 13 June 2001 and remitted the case to the District Court.
- On
26 December 2001 the District Court allowed the applicant’s
claim. The company appealed.
- On
23 April 2002 the Vinnitsa Regional Court of Appeal quashed the
judgment of 26 December 2001 and remitted the case for a fresh
consideration. On 19 August 2002 the Supreme Court dismissed the
applicant’s appeal in cassation against the ruling of 23 April
2002.
- On
an unspecified date the Fund joined the proceedings as a third party.
- Between
20 August 2002 and 14 May 2009 the District Court scheduled some
fifty-four hearings. Three of them were adjourned due to absence of
the Fund’s representative. Six hearings were adjourned since
the applicant or his representative failed to appear or at their
request. Two hearings were adjourned as the judge was on holiday, six
since he was involved in other proceedings and ten on account of the
judge’s illness. Sixteen hearings were adjourned since the
company’s representative failed to appear or at his request.
- On
15 May 2009 the District Court left the applicant’s claim
without consideration. The applicant in his submissions stated that
he had learned about that decision from the Government’s
observations sent to him in July 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the first, second, third and
fourth sets 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
first set of proceedings began on 21 September 2000 and ended on 15
May 2009. The proceedings thus lasted eight years and almost eight
months for three levels of jurisdiction.
- The
second set of the proceedings began on 18 February 2002 and ended on
3 June 2009. The proceedings thus lasted about seven years and four
months for one level of jurisdiction.
- The
third set of the proceedings began on 21 March 2001 and ended on 15
May 2009. The proceedings thus lasted eight years and almost one
month for two levels of jurisdiction.
- The
fourth set of the proceedings began on 3 May 2001 and ended on 15 May
2009. The proceedings thus lasted about eight years 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
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 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 on account of the
length of the first, second, third and fourth sets of the
proceedings.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 about unfairness of the
proceedings. He further complained under the same Article that the
ruling of 22 December 2003 was adopted by the Supreme Court in his
absence. The applicant also alleged under Article 1 of Protocol No. 1
to the Convention that he was not provided with the wheelchairs and
anti-bedsore treatment. He further invoked Articles 2, 13 and 17 of
the Convention referring to the facts of the case Lastly, he alleged
that the State authorities had violated Articles 2, 3, 4, 5, 6, 8, 9
and 10 of the UN Declaration on the Rights of Disabled Persons.
- 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.
- 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
- 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 9,282 euros (EUR) and EUR 44,500 in respect of
pecuniary and non-pecuniary damage, respectively, caused by the
lengthy examination of his claims lodged within the first, third and
fourth sets of the proceedings. He further claimed EUR 4,017 in
respect of pecuniary and non-pecuniary damage caused by the lengthy
consideration of his claim lodged within the second set of the
proceedings.
- 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, ruling on an equitable basis, it awards the applicant
EUR 4,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 170.80 for the legal expenses incurred before
the domestic courts.
- He
further claimed EUR 39.40. This amount included UAH 225 (about EUR
21) for translation services and UAH 178.19 (about EUR 16) for
sending his letters and faxes to the Court. The applicant provided a
copy of the receipt evidencing payment of UAH 225 to the translation
agency.
- The
Government agreed that the applicant incurred some expenses for
sending his correspondence. They further contested the remainder of
his claims.
- 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 37 in respect of
costs and expenses.
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 first,
second, third and fourth sets 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 on account of the length of the first
second, third and fourth sets of the proceedings;
- 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 4,200 (four
thousand two hundred euros) in respect of non-pecuniary damage and
EUR 37 (thirty-seven euros) in respect of costs and expenses, plus
any tax that may be chargeable, to be converted into the national
currency of the respondent State at the rate applicable at 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 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 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
