FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10695/02 by Viktor Ivanovich KIRILENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 3 July 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 21 February 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vik tor Ivanovich Kirilenko, is a Ukrainian national who was born in 1939 and lives in Simferopi l. The Ukrainian Government (“the Government”) were represented Mr Y. Zaytsev , their Agent , and Mrs I. Shevchuk , Head of the Office of the Government Agent before the European Court of Human Rights.

A. Background

Prior to July 1983 the applicant had been certified as falling within the “second category of invalidity” ( друга група інвалідності ) on account of a haematological disease. He was receiving a disability pension and earning occasional additional income collecting and selling wild produce.

In July 1983 the applicant sustained an injury (concussion and bone fractures) in a car accident caused by Mr K., an employee of the Auto-transport unit of the Simferopil Health Department (“the ATU” ; Автогосподарство Симферопольського міського управління охорони здоров ’ я ), who was subsequently sentenced for dangerous driving.

In the aftermath of the accident, the applicant was certified as falling within the “first category of invalidity” on account of the injury. However, in 1985 a medical commission restored him into the “second category”, having found that the remaining effects of the injury could not justify the attribution of the “first category”. The applicant, however, ceased collecting wild produce allegedly due to deterioration of his health condition.

B. First set of proceedings

In January 1984 the applicant instituted civil proceedings against the ATU seeking compensation for his medical expenses and the loss of earnings.

On 29 January 1985 the Kyivsky District Court of Simferopil (“the District Court”; Київський районний суд м. Симферополя ) allowed the applicant ’ s claims in part. On 4 March 1985 the Crimean Regional Court ( Кримський обласний суд ) upheld this judgment and it became final.

In 2001, pursuant the introduction of the new cassation procedure, the applicant lodged a cassation appeal against the above rulings, seeking higher payments. On 18 December 2001 the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation.

C. Second set of proceedings

In November 1990 the applicant instituted civil proceedings against the ATU seeking additional compensations. On 10 January 1992 the District Court rejected this claim as unsubstantiated. On 9 March 1992 the Crimean Regional Court upheld this judgment and it became final.

D. Third set of proceedings

On 16 September 1996 the applicant instituted civil proceedings seeking to obtain additional compensation for the loss of earnings, medical and rehabilitation expenses and other payments from the ATU. In the course of the proceedings, the applicant amended his claims on three occasions.

On 6 March 1997 the District Court rejected the applicant ’ s claims, finding that the applicant ’ s health condition was not connected to the accident and his disability category was not affected by the injury sustained.

On 9 April 1997 the Supreme Court of the Crimea ( Верховний суд Автономної Республіки Крим ) upheld this judgment and it became final.

On 1 August 1997 the Supreme Court of the Crimea quashed the above rulings following a protest (an extraordinary appeal) introduced by its Acting President and remitted the case for a fresh consideration. In particular, the court found that additional investigation was necessary into the specific health damage caused by the accident.

In the course of subsequent proceedings, the courts ordered the total of six independent medical expert opinions, some of which contradicted the others, and interviewed six specialists involved in the applicant ’ s treatment.

On 1 July 1998 the District Court rejected the applicant ’ s claims, finding, based on a medical assessment, that the accident had certain lasting effects on the applicant ’ s health, but they required no special treatment and were not linked to the damage claimed.

On 19 August 1998 the Supreme Court of the Crimea quashed this decision and remitted the case for fresh examination . Subsequently, the court assumed first instance jurisdiction over the case.

On 29 June 1999 the Supreme Court of the Crimea rejected the applicant ’ s claims. It found that part of them had been finally adjudicated in other proceedings brought in 1984 and 1990 (see sections B and C above). As regards the other claims, the court found no causal link between the effects of the accident on the applicant ’ s health and the expenses claimed. It further dismissed the claim for loss of earnings as unsubstantiated, since the applicant had subsisted on disability pension, while his produce collecting activities could not be regarded as “earnings”.

On 27 October 1999 the Supreme Court of Ukraine quashed the judgment of 29 June 1999 and remitted the case for a fresh consideration. It instructed the trial court to assess the degree of work fitness lost by the applicant as a result of the accident, without regard to his prior disability, and to make an additional investigation into the importance of the produce collection as a source of the applicant ’ s income.

On 18 April 2001 the Supreme Court of the Crimea, relying on a new medical expert opinion, decided that the injury resulting from the accident was sufficient to entitle the applicant to a “third category invalidity” ( третя группа інвалідності ) and that the applicant ’ s produce collecting activities could qualify as “lost earnings”. Therefore, the court awarded the applicant 1,128 hryvnyas [1] in compensation. The applicant appealed, considering this sum insufficient.

On 20 June 2001 the Supreme Court of Ukraine quashed this judgment and remitted the case for a fresh consideration, referring to several contradictions in the opinions of medical experts as to the applicant ’ s loss of work fitness and challenging the method of calculating the award.

On 29 May 2002 the Crimean Court of Appeal (formerly the Supreme Court of the Crimea ) rejected the applicant ’ s claims as unsubstantiated. The applicant appealed in cassation.

On 25 July 2002 the court suspended the applicant ’ s cassation appeal and proposed that he rectify its formal shortcomings. On 2 September 2002 the court returned the appeal as “not lodged” on account of the applicant ’ s failure to rectify the above shortcomings. The applicant did not challenge this decision.

Subsequently the applicant unsuccessfully attempted to re-lodge his appeal in cassation after the expiry of the statutory time-limit.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the excessive length of the third set of proceedings and about the unfair outcome of all three sets of his proceedings against the ATU . He further complained, without a reference to any Convention provision, about malpractice of medical personnel in his respect.

THE LAW

1. The applicant first complained about the excessive leng th of the third set of proceedings initiated in September 1996 and ending in September 2002. He invoked Article 6 § 1 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 fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Government submitted that the complaint was inadmissible.

The Court notes that the proceedings at issue were instituted in 1996. However, the period to be taken into consideration began only on 11 September 1997, when the Convention entered into force in respect of Ukraine , and ended on 2 September 2002. The proceedings, therefore , lasted for five years before three levels of jurisdiction .

The “reasonableness” of the length of these proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent 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 finds that the proceedings at issue were of importance for the applicant as they concerned compensation for having been injured in a car accident. Nonetheless, the Court notes that the applicant instituted these proceedings more than ten years after the accident and that some of his claims partly repeated the ones finally adjudicated in two other sets of proceedings, while others were eventually dismissed as unsubstantiated in the course of the proceedings in question.

The Court finds that the judicial authorities can be held responsible for certain delays in examining the applicant ’ s claims, particularly, for repeated reconsiderations of the matter. However, the Court does not find any significant periods of inactivity attributable to the domestic authorities in disposing of the applicant ’ s claims. The duration of the proceedings appears largely attributable to the complexity of the issues at stake. In particular, the case originated in the events of 1980s and the domestic courts questioned six witnesses and ordered several independent expert assessments to clarify the causal link between the health damage sustained by the applicant and the claims advanced by him. Furthermore, the Supreme Court of the Crimea eventually assumed first-instance jurisdiction in the case and the Supreme Court acted as the court of appeal.

The applicant, on his own part, contributed to the duration of the proceedings by lodging additional claims and appeals, as well as by failing to rectify the shortcomings of his final appeal in cassation.

In these circumstances, the Court finds that, on balance, the duration of the proceedings, which lasted five years for three levels of jurisdiction , did not exceed what may be considered “reasonable” (see e.g., Zherdin v. Ukraine (dec.), no. 53500/99, 1 February 2005 and Belukha v. Ukraine , no. 33949 /02, §§ 66-67 , 9 November 2006 ).

It therefore finds that the applicant ’ s complaint should be rejected for being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complain ed under Article 6 § 1 about the unfair outcome of all three sets of his proceedings.

The Court notes that the applicant ’ s complaints in respect of the first and the second set of the proceedings are outside its temporal competence (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002 as regards the first set of proceedings).

As regards the third set of proceedings, the Court recalls that the applicant had neither rectified the shortcomings of his appeal in cassation against the judgment of 29 May 2002, nor challenged the decision of 2 September 2002, by which the above appeal was returned as “not lodged”. He has therefore not, as required by Article 35 § 1, exhausted the remedies available to him under domestic law. In view of the above, this part of the application should be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

3. Lastly, the applicant complained, without a reference to any provision of the Convention or its protocols, about various instances of medical malpractice in his respect.

The Court notes that the applicant has not shown that he raised relevant claims in domestic proceedings. It follows that this part of the application is also inadmissible for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

4 . In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible .

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . 173 euros (EUR).