CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 8 décembre 2011

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UKRAINE   (Applications nos. 44654/06, 32525/08 and 35537/08)                       JUDGMENT       STRASBOURG   8 December 2011       This judgment is final but it may be subject to editorial revision. 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 15 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos. 44654/06, 32525/08, and 35537/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr Leonid Vasilyevich Petrov (“the first applicant”), Ms Lyudmila Fedorovna Lyutova (“the second applicant”) and Mr Mykola Yakovych Korchynskyy (“the third applicant”), on 10 October 2006, 25 June 2008 and 4 July 2008, respectively. 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice. 3.     The notice of the applications was given to the Government by the decisions of the President of the Fifth Section of 26 August, 18 October and 25 August 2010, respectively. THE FACTS 4.     The applicants were born in 1955, 1953 and 1946 and live in Gorlivka, Rovenky and Kryvyy Rih, respectively. 5.     The applicants instituted separate sets of civil proceedings against their employers mainly claiming occupational disability allowances. I.     The proceedings instituted by the first applicant 6.     On 23 September 1999 the first applicant, a former miner, instituted civil proceedings in the Mykytivsky District Court of Gorlivka (“the Mykytivsky Court”) against his former employer, a State-owned mine, seeking recalculation of his occupational disability payment. 7.     Between September 1999 and August 2003 the Mykytivsky Court reconsidered the case on three occasions. Its judgments of 2 June and 14   November 2000 and 15 October 2001 were quashed by the Donetsk Regional Court [1] on 24 July 2000, 26 February 2001 and 25 February 2002 for procedural irregularities and legal and factual errors. Accordingly, the case was remitted for fresh examination. 8.     On 18 April 2003 the Mykytivsky Court replaced the respondent in the case upon the applicant’s request. In particular, the court ordered another company, the mine’s successor, to stand as a respondent. The court also ordered the local social security fund to take part in the proceedings as a co-respondent. 9.     On the same day the Mykytivsky Court delivered a judgment, ordering the fund to make monthly payments in respect of the applicant’s occupational disability. By a separate procedural decision, the applicant’s claims against the other co-respondent were left without consideration as the applicant withdrew them in the course of the court hearing. 10.     On 18 December 2003 the Donetsk Regional Court of Appeal quashed the judgment of 18 April 2003 and ordered reconsideration of the case. 11.     On 20 April 2006 the Supreme Court quashed the decision of the Court of Appeal, finding that the latter had not complied with the rules of procedure. 12.     On 27 July 2006 the Court of Appeal reconsidered the case and adopted a new judgment reducing the payments awarded to the applicant by the first-instance court. 13.     On 22 January 2008 the Kyiv Court of Appeal, acting as a court of cassation, rejected the applicant’s appeal and confirmed the judgment of 27   July 2006. 14.     The applicant unsuccessfully tried to challenge the courts’ decisions in an extraordinary appeal, which was rejected by the Supreme Court on 18   May 2009. 15.     According to the Government, out of fifty-two scheduled hearings, twenty-four were adjourned for various reasons. In particular, the hearings were adjourned twice because of the failure of the applicant to appear, twenty times due to the failure of the respondents or their representatives to appear, and twice because of both parties’ failure to appear. Additionally, two hearings were adjourned as the judge was absent for health and business reasons. On several occasions the courts had to renew, at the applicant’s and the respondent’s request, the term for lodging an appeal which resulted in a delay of about three months. Lastly, due to the expert examination ordered at the applicant’s request, the consideration of the case was delayed for about six months. 16.     According the applicant, the hearings were adjourned twenty-three times due to the failure of the respondents or their representative to appear. The applicant also indicated that the case had not been heard between 10   May 2002 and 7 February 2003 as the presiding judge’s mandate had expired. II.   The proceedings instituted by the SECOND applicant 17.     On 23 June 1998 the second applicant, then a miner, instituted civil proceedings in the Rovenky Town Court of Lugansk Region (“the Rovenky Court“) against her employer, a State-owned mine, asking the court to order the mine to issue her a certificate confirming that she had received an occupational injury. 18.     In the course of the proceedings the applicant amended her claims on several occasions. In particular, she sought compensation for pecuniary and non-pecuniary damage, resulting from her injury, to be paid by the mine and the local social security fund. 19.     Between June 1998 and May 2003 the Rovenky Court reconsidered the case on two occasions. Its judgments of 24 November 1998 and 6 May 2003 were quashed by the Lugansk Regional Court [2] on 14 January 1999 and 29 January 2004, respectively, for procedural irregularities and failure to accurately establish the circumstances. Accordingly, the case was remitted for fresh examination. 20.     By the judgment of 24 February 2006, the Rovenky Court rejected the applicant’s claims as unsubstantiated. Following two reconsiderations of the case on appeal, the judgment was eventually confirmed by the Lugansk Regional Court of Appeal on 28 November 2007. 21.     On 5 March 2008 the Supreme Court rejected the applicant’s appeal in cassation, finding no fault on the part of the lower courts. 22.     According to the Government, out of sixty-eight hearings scheduled in the course of the proceeding, eleven were adjourned because of the failure of the applicant or her representative to appear, eight due to the respondents’ or their representatives’ failure to appear or requests to adjourn hearings, and three because all the parties failed to appear. 23.     According to the applicant, she attended all the hearings; her representative failed to appear at only two hearings and was later dismissed by the applicant. 24.     On three occasions the courts had to renew, at the applicant’s and respondents’ requests, the term for lodging an appeal which resulted in a delay of about four months. III.     The proceedings instituted by the THIRD applicant 25.     On 26 July 2002 the applicant, then a miner, instituted civil proceedings in the Ternivsky District Court of Kryvyy Rih (“the Ternivsky Court”) against two State-owned companies who were the successors of his former employer, a State-owned mine, and the local social security fund, seeking recalculation of his occupational disability payments and compensation for pecuniary and non-pecuniary damage. 26.     In the course of the proceedings the applicant amended his claims on several occasions. The amendments mainly concerned the amounts he claimed. 27.     Between July 2002 and November 2007 the Ternivsky Court reconsidered the case on three occasions. Its judgments of 5 July 2004, 6   March 2006 and 23 August 2007 were quashed by the Dnipropetrovsk Regional Court of Appeal on 4 November 2004, 5 October 2006 and 29   November 2007, respectively, for procedural irregularities and legal and factual errors. Accordingly, the case was remitted for fresh examination. 28.     The applicant’s appeal in cassation against the decision of 29   November 2007 was rejected by the Supreme Court on 11 March 2008. 29.     The case is currently pending before the Ternivsky Court. 30.     Out of sixty-three hearings scheduled between 26 July 2002 and 6   December 2010, five were adjourned because of the failure of the applicant or her representative to appear, eighteen were adjourned due to the respondents’ or their representatives’ failure to appear, six times both parties failed to appear. On four occasions the hearings were adjourned for the presiding judge was busy with another case. THE LAW I.     JOINDER OF THE APPLICATIONS 31.     The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common legal background. II.     COMPLAINTS ABOUT THE LENGTH OF THE PROCEEDINGS 32.     The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. Some of the applicants also relied on Article 13 of the Convention. The Court considers that the complaints must be examined solely under Article 6 of the Convention, which reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 33.     The Government argued that there had been no delays in the course of the proceedings that could be attributed to the State. They further submitted that the cases had been complicated; that the applicants had contributed to the length by lodging additional claims, procedural requests and appeals, sometimes not in accordance with the procedure; and that the delays had been caused mainly because of the parties’ failure to appear before the courts on a number of occasions. 34.     As regards the proceedings concerning the first applicant, the Government also noted that they had been somewhat protracted because of the excessive case-load of the Supreme Court. They further argued that the period from 23 September 1999 to 18 April 2003 must not be included into the overall duration of those proceedings for the Court’s consideration, as the applicant had eventually withdrawn his claims against the original respondent (the mine). 35.     The Court observes that the proceedings in the applicants’ cases lasted for more than nine years, the third applicant’s case having not been completed so far. The duration of the first applicant’s proceedings must be examined in its entirety, because the applicant’s withdrawal of the claims against one of the respondents was a modification of his original claim, rather than an indication of intent not to pursue it. Admissibility 36.     The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 37.     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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court reiterates that special diligence is necessary in disputes relating to the applicant’s principle source of income (see, mutatis mutandis , among other authorities, Ruotolo v. Italy , judgment of 27 February 1992, Series A no.   230-D, p. 39, § 17; Tusashvili v. Russia , no. 20496/04 , § 25, 15   December 2005 and Golovko v. Ukraine , no. 39161/02, § 54-55, 1   February 2007). 38.     The Court acknowledges that the proceedings might have been somewhat complicated in particular because the applicants amended their claims on a number of occasions. Furthermore, the applicants contributed, to some extent, to the length of the proceedings by failing to attend some of the hearings and by lodging various procedural requests and appeals. The Court however considers that the alleged complexity of the cases and the applicants’ behaviour alone cannot justify the overall length of the proceedings. 39.     The Court observes that the major delays were caused by the repeated reconsiderations of the cases resulting from the courts’ procedural and substantive errors. In this context, the Court reiterates that, since remittal is usually ordered because of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see, mutatis mutandis , Wierciszewska v.   Poland , no. 41431/98, § 46, 25 November 2003). 40.     The Court also takes note of the particularly lengthy delays in the proceedings, for which no acceptable justification was provided (see paragraphs 10-13, 19-20 and 27-29 above). 41.     In the light of the foregoing, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case. 42.     The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the ones in the present cases (see Frydlender , cited above). 43.     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 cases 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. III.     OTHER COMPLAINTS 44.     The applicants complained about the outcome and unfairness of the proceedings and relied on Articles 6 and 13 of the Convention. 45.     Having carefully examined the applicants’ remaining complaints 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 and must be dismissed pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 46.     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.” 47.     The third applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. A.     Damage 48.     The first applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage. 49.     The second applicant claimed 685,665.00 Ukrainian hryvnias (UAH) [3] in respect of pecuniary and non-pecuniary damage. 50.     The Government contested these claims as unsubstantiated, stating that there was no causal link between the alleged violation and the loss allegedly sustained. 51.     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 applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the first and second applicant EUR 4,200 each under that head. B.     Costs and expenses 52.     The first applicant claimed UAH 373.22 [4] for postal and translation expenses in the proceedings before the Court. The Government left the matter to the Court’s discretion. Regard being had to the documents in its possession and to its case-law, the Court considers that the claim should be allowed in full and awards the first applicant EUR 33 for costs and expenses. 53.     The second applicant did not claim costs and expenses; the Court therefore makes no award. C.     Default interest 54.     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.     Decides to join the applications;   2.     Declares the applicants’ complaints under Article   6   §   1 of the Convention about the length of the proceedings admissible and the remaining complaints inadmissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention;   4.     Holds (a)     that the respondent State is to pay within three months:   - to Mr Petrov EUR 4,200 (four thousand two hundred euros) for non ‑ pecuniary damage and EUR 33 (thirty-three euros) for costs and expenses, - to Ms Lyutova EUR 4,200 (four thousand two hundred euros) for non ‑ pecuniary damage,   plus any tax that may be chargeable to the applicants, 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;   5.     Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 8 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Mark Villiger Deputy Registrar President [1] .     That court was eventually named the Donetsk Regional Court of Appeal. [2] .     That court was eventually named the Lugansk Regional Court of Appeal. [3] .   Around EUR 59,689 [4] .   Around EUR 33