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FIFTH
SECTION
CASE OF KHALAK v. UKRAINE
(Application
no. 39028/04)
JUDGMENT
STRASBOURG
18
February 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 Khalak v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo
Buromenskiy, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 26 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39028/04) 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, Ms Yaroslava Stepanivna Khalak (“the
applicant”), on 22 October 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
14 January 2008 the
Court decided to give notice of the application to the Government. It
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
- The
applicant is a Ukrainian national who was born in 1970 and lives in
the Ivano-Frankivsk Region.
- In
October 1994 the applicant was injured by a private individual, V.
Shortly afterwards, criminal proceedings were instituted against that
person in the course of which the applicant claimed compensation for
damage.
- On
8 December 1995 the Bogorodchany Court found V. guilty of
inflicting bodily injuries on the applicant and ordered him to pay
the applicant 8,000,000 karbovantsi (former Ukrainian currency) in
compensation.
- On
10 January 1996 the Ivano-Frankivsk Regional Court quashed the part
of that judgment which concerned the applicant’s compensation
claim and remitted that part of the case for fresh consideration. In
May 1996 the applicant modified her claims.
- Between
10 January 1996 and 10 September 1997 the case was twice
reconsidered by the courts of first and appeal instances. On the
latter date the applicant requested the first-instance court to
suspend the proceedings until January-February 1998 for health
reasons.
- On
29 September 1997 the court granted her request.
- In
October 1998 the proceedings were resumed.
- On
19 November 1998 the Tysmennytsa Court, to which the case had earlier
been transferred, ordered, of its own motion, a forensic examination
to assess the gravity of the applicant’s bodily injuries. The
examination was completed on 2 February 1999.
- On
22 July 1999 the court ordered an additional forensic examination at
the applicant’s request. That examination was completed on
27 December 2000.
- On
8 February 2002 the court allowed the applicant’s claim in part
and awarded her 22,316 Ukrainian hryvnias (UAH)
in compensation for her medical treatment, loss of earnings,
non-pecuniary damage and legal fees.
- On
28 May 2002 the Ivano-Frankivsk Regional Court of Appeal changed that
decision and decreased the award to UAH 9,315.
- In
June 2002 the applicant and V. appealed in cassation.
- Following
several reconsiderations of the admissibility of V.’s appeal,
on 24 April 2003 the case was referred to the Supreme Court.
- On
4 June 2004 the Supreme Court dismissed the appeals lodged by the
applicant and V. as unsubstantiated.
- According
to the Government, the judgment of 8 February 2002 (as amended by the
judgment of 28 May 2002) was enforced in full by the end of 2004.
- In
the course of the court proceedings, nine hearings were adjourned
either at the applicant’s request or due to her failure to
appear, four were adjourned due to both parties’ failure to
appear, and one was adjourned due to the absence of the judge.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- Relying
on Articles 6 § 1 and 13 of the Convention, the applicant
complained that the length of the proceedings had been excessive. The
Court, which is master of the characterisation to be given in law to
the facts of the case, considers that this complaint falls to be
examined solely under Article 6 § 1 of the Convention which
reads, in so far as relevant, as follows:
Article 6 § 1
“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 this part of the application 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
Government maintained that the period to be taken into consideration
had begun on 11 September 1997 when the Convention entered into force
in respect of Ukraine. In their view, the applicant had contributed
to the length of the proceedings by requesting adjournment of
hearings, by failing to appear before the courts on several occasions
and by introducing procedural requests and appeals, and that there
had been no significant periods of inactivity attributable to the
domestic authorities. The Government argued that the proceedings,
including the enforcement stage, had been completed within a
reasonable time.
- The
applicant disagreed.
- The
Court observes that the overall duration of the proceedings,
including the enforcement stage, was more than ten years. The period
to be taken into consideration ratione temporis began on 11
September 1997, when the recognition by Ukraine of the right of
individual petition took effect, and ended in December 2004, when the
final judgment in the case was enforced, and thus lasted for about
six years and two months, excluding the period from 29 September 1997
to October 1998, during which the proceedings were suspended. In
assessing the reasonableness of the time that elapsed after
11 September 1997, the Court will take into account the
state of proceedings on that day.
- 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).
- At
the outset, the Court notes that the applicant contributed to the
delay in the proceedings by failing to attend some of the hearings,
by requesting adjournments, and by lodging appeals and procedural
requests. However, the Court does not share the Government’s
view that the primary responsibility for the delays in the
proceedings rests with the applicant.
- In
particular, the Court observes that the case concerned compensation
for damage which the applicant had sustained on account of her
ill-treatment by a private individual. The facts surrounding the
applicant’s ill-treatment were finally established by the
courts dealing with the criminal case against the offender on 10
January 1996. The civil proceedings were limited to the
determination of the amount of compensation and lasted for about five
years and eight months.
- Although
the case was somewhat complicated by the fact that the domestic
courts had to order two forensic examinations, the Court considers
that the period of time which it took the civil courts at three
instances to finally determine the amount of compensation was
unjustifiably lengthy, given the fact that, before 11 September 1997,
the matter had already been pending before the courts for about three
years. The Court is also of the view that during the
cassation phase, which lasted from June 2002 to
June 2004, the proceedings were not conducted with the requisite
diligence (see paragraphs 15-17 above).
- Having
examined all the materials submitted to it in view of the above
considerations, the Court finds that the length of the judicial
proceedings was excessive and failed to meet the “reasonable
time” requirement. At the same time, the Court discerns no
reason to hold the authorities responsible for any delay in the
enforcement of the judgment of 28 May 2002, which had been given
against a private individual.
- Accordingly,
the Court finds that there has been a breach of the reasonable-time
requirement of Article 6 § 1 of the Convention on account of the
length of the judicial proceedings in the present case.
II. OTHER COMPLAINTS
- The
applicant complained, under Articles 6 § 1 and 13 of the
Convention, about the outcome of the proceedings and that the
judgment of 8 February 2002 had not been enforced.
- In
the light of the materials in its possession, the Court finds that
the applicant’s complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application must be declared
inadmissible as 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 UAH 250,000
in respect of non-pecuniary damage.
-
The Government contested that claim.
- The
Court making its assessment on an equitable basis, as required by
Article 41 of the Convention, awards the applicant EUR 600
for non-pecuniary damage.
B. Costs and expenses
- The
applicant did not put forward any claims under this head therefore
the Court makes no award.
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 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 600 (six
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into national currency 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 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 on 18 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
