FIFTH SECTION

CASE OF MUSIYENKO v. UKRAINE

(Application no. 26976/06)

JUDGMENT

STRASBOURG

20 January 2011

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

In the case of Musiyenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Rait Maruste, President,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 26976/06) 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 Ivanovych Musiyenko (“the applicant”), on 20 June 2006.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  On 24 June 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 1938 and lives in Dzerzhynsk.
5.  On an unspecified date in April 1999 the applicant lodged a claim against the State Company “Dzerzhynskvugillia” (“the company”, Державне Підприємство «Дзержинськвугілля»). In particular, he claimed damages for a discrepancy in the calculations of compensation for a professional illness. On 5 April 1999 the Dzerzhynsk City Court (“the City Court”) opened proceedings on the applicant’s claim.
6.  On 6 December 1999 the City Court warned the company of a penalty for its failures to appear before the court.
7.  On 15 January 2002 the applicant lodged a new claim with the City Court against the company seeking indexation of his salary.
8.  Having been joined on 2 December 2002, the claims were dismissed by the City Court on 1 July 2004.
9.  In the meantime, the applicant had modified his claims four times and the Dzerzhynsk City Department of the State Insurance Fund for Industrial Accidents and Diseases joined the proceedings as a second defendant. Between 7 February 2000 and 30 May 2002, the Court of Appeal quashed four first-instance judgments and ordered fresh hearings.
10.  On 10 February 2005 the Donetsk Regional Court of Appeal (“the Court of Appeal”) quashed the judgment of 1 July 2004 in part related to the compensation of a professional illness. The court, out of UAH 6,028 (EUR 844) claimed by the applicant for pecuniary and UAH 50,000 (EUR 7,000) for non-pecuniary damage, awarded the applicant UAH 177 (EUR 25). The applicant appealed in cassation.
11.  On 4 June 2007 the Supreme Court, according to the Judicial System Act (as amended on 22 February 2007), transmitted the applicant’s appeal to the Kyiv Court of Appeal which, on 9 October 2007, finally upheld the decisions of 1 July 2004 and 10 February 2005.
12.  In the course of the proceedings, two expert examinations were ordered and a number of procedural rulings were adopted. During the same period of time, the applicant filed nine procedural requests and eleven appeals, two of which did not meet procedural requirements.
13.  According to the Government, of the seventy one hearings scheduled between 5 April 1999 and 9 October 2007, nineteen were adjourned due to the company representative’s failure to attend, eleven were adjourned at request of one or both defendants, six were adjourned at the applicant’s request, four were adjourned owing to the presiding judge’s sickness or absence, one was adjourned due to both parties’ failure to attend, and two were adjourned for other reasons beyond the parties’ control.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
14.  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 ...”
15.  The Government contested that argument.
16.  The period to be taken into consideration began on 5 April 1999 and ended on 9 October 2007. It thus lasted more than eight years and six months for three level of jurisdiction.
A.  Admissibility
17.  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
18.  The Government maintained that the proceedings had been complex in that the applicant had repeatedly recalculated damages, his additional action had had to be joined to the original one and the expert examinations had had to be ordered. In their view, the applicant had contributed to the length of the proceedings by having filed a number of the procedural requests and appeals, and, together with the defendants, had been responsible for the protracted length of the proceedings. According to the Government, there had been no significant periods of inactivity attributable to the domestic courts.
19.  The applicant disagreed.
20.  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).
21.  Turning to the present case, the Court notes that the applicant pursued his action claiming recalculation of the compensation arising from his professional illness and ensuing damages. The proceedings were therefore of some importance for him. 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.
22.  The Court further observes that the case was to some extent complicated by four subsequent recalculations of the damages claimed by the applicant and the fact that he submitted a new action which was joined to the original one. Moreover, the domestic courts had to establish whether the applicant sustained any pecuniary and non-pecuniary damage and, if so, to calculate the amount of the compensation to be paid. Even if the case was also complicated by the fact that the domestic courts had to order two expert examinations, the Court concludes that the subject matter of the litigation cannot be considered particularly complex.
23.  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 13 and 14 above): he requested the adjournment of six hearings, failed to appear at one hearing and lodged two appeals that did not meet procedural requirements. However, in respect of his procedural requests and properly filed appeals, the Court notes that he merely exercised his procedural rights and cannot be blamed for using the avenues available to him under the domestic law in order to protect his interests (see, Silin v. Ukraine, no. 23926/02, § 29, 13 July 2006).
24.  As regards the Government’s contention that they were not responsible for the delays caused by the defendants, the Court observes that it is for the domestic authorities to constrain the abusive and dilatory conduct of a party to civil proceedings. In fact, one of the defendant’s failure to attend court hearings on a number of occasions significantly protracted the proceedings (see paragraph 13 above). Although the courts were sufficiently equipped for ensuring the defendant’s presence in the courtroom or to consider the case in its absence, there is no indication whether the measures they took sped up the proceedings in any way (see, mutatis mutandis, Smirnova v. Ukraine, no. 36655/02, §§ 53 and 69, 8 November 2005). Therefore, this cannot be considered as exonerating the respondent State as regards one of the defendant’s conduct.
25.  As to the conduct of the courts, the Court notes that the main delays in the proceedings were caused by the four consecutive remittals of the applicant’s case for re-examination (see paragraph 9 above). It recalls in this respect that since the remittal of cases is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiencies in the judicial system (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003).
26.  The Court also finds lacking due diligence the fact that the examination of the applicant’s appeal in cassation lasted one year and eight months, while it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective.
27.  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.
There has accordingly been a breach of Article 6 § 1.
II.  OTHER COMPLAINTS
28.  The applicant further complained under Articles 6 § 1 and 13 of the Convention in respect of the courts’ assessment of evidence and interpretation of the national law and challenged the outcome of the proceedings. He also alleged a violation of Articles 2, 5, 7 and 34 of the Convention and Article 1 of Protocol No. 1, Article 3 of Protocol No. 4 without any further specification.
29.  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.
30.  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
31.  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
32.  The applicant claimed EUR 556 in respect of pecuniary and EUR 19,413 in respect of non-pecuniary damage.
33.  The Government contested these claims.
34.  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, the Court considers that the applicant must have sustained non-pecuniary damage which cannot be sufficiently compensated by the sole finding of a violation. Making its assessment on an equitable basis and having regard to the particular circumstances of the case, the Court awards the applicant EUR 1,100 under that head.
B.  Costs and expenses
35.  The applicant also claimed EUR 25 for the costs and expenses incurred before the domestic courts.
36.  The Government contested the claim.
37.  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
38.  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 amounts 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 20 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste
	Deputy Registrar	President