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FIFTH
SECTION
CASE OF PALAMARCHUK v. UKRAINE (no. 2)
(Application
no. 17156/05)
JUDGMENT
STRASBOURG
21
October 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Palamarchuk v. Ukraine (no. 2),
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 17156/05) 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 9 April 2005.
- The
applicant was represented by his brother, Mr M.T.
Palamarchuk. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
21 October 2009 the
President of the Fifth Section 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
- The
applicant was born in 1961 and lives in Vinnytsya.
- 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.
First set of proceedings
- On
20 November 1998 the applicant instituted proceedings in the Leninsky
District Court of Vinnytsya against the successor
of the company responsible for the accident, Vinnytsya
specialised collective company no. 26, (“the company”),
seeking a ruling obliging the latter to allocate him money to
purchase a car for disabled people. He also claimed compensation for
non-pecuniary damage allegedly caused to him. The final decision in
the case was given by the Supreme Court on 29 December 2002.
Second set of proceedings
- On
5 June 2001 the applicant instituted proceedings in the Leninsky
District Court of Vinnytsya seeking a ruling obliging the company to
allocate him money to purchase a car for disabled people.
- On
8 November 2002 the court declined to consider this claim.
- On
15 January 2003 the Vinnitsa Regional Court of Appeal quashed the
ruling of the first-instance court and remitted it to the
first-instance court.
- On
29 December 2003 the court partly allowed the applicant’s
claim. On 19 April 2004 the Vinnytsya Regional Court upheld the
judgment of the first-instance court.
- On
16 November 2006 the Supreme Court upheld the decisions of the lower
courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the second set of 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 consideration began on 5 June 2001 and ended
on 16 November 2006. It thus lasted about five years and four 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
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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 § 1, 13 and 17
of the Convention about unfairness and outcome of the proceedings. He
further complained under Article 6 § 1 about excessive length of
the first set of proceedings. The applicant also complained under
Article 2 of the Convention that he was not provided with the car he
whished. He finally complained under Article 1 of Protocol No. 1
about the outcome of the proceedings. He also referred to certain
provisions of the UN Convention 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 19,696 euros (EUR) in respect of pecuniary damage.
He further claimed EUR 37,515 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, ruling on an equitable basis, it awards the applicant
EUR 600 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant, who was not represented by a lawyer before the Court, also
claimed EUR 91 for legal costs. In addition he claimed UAH 395.96
for other expenses. This amount included; inter alia, UAH 150
(about EUR 14) for postage and UAH 210 (about EUR 20) in respect of
expenses for translation. In support, the applicant provided copies
of the receipts evidencing his expenses for postage for a total
amount of UAH 27.52 (about EUR 3) and receipts evidencing
payment of UAH 210 (about EUR 20) to a translation agency.
- The
Government contested these 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 applicant the sum of EUR 23 for
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 concerning the excessive
length of the second set of 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 second
set of 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 600 (six hundred
euros) in respect of non-pecuniary damage and EUR 23 (twenty-three
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 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
