FIFTH SECTION

CASE OF LITVINYUK v. UKRAINE

( Application no. 55109/08 )

JUDGMENT

This version was rectified on 4 April 2018

under Rule 81 of the Rules of Court.

STRASBOURG

1 March 2018

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

In the case of Litvinyuk v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

André Potocki , President, Mārtiņš Mits , Lado Chanturia , judges,

and Anne-Marie Dougin , Acting Deputy Section Registrar ,

Having deliberated in private on 6 February 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 55109/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Lyudmila Antonovna Litvinyuk (“the applicant”), on 29 October 2008 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.

3 . On 23 April 2015 the complaints concerning the length of the proceedings and the lack of remedies in that respect were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I . THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1955 and lives in Simferopol. She is a single mother and has a son who at the time of the accident in question was eight years old.

5 . On 24 July 1995 the applicant was knocked down by a trolley bus. She suffered an open craniocerebral injury and contusion of the brain. As a result , the applicant received the status of a disabled person with the lowest degree of disability ( третя група інвалідності ) .

6 . In January 1996 the applicant instituted proceedings in the Tsentralnyy District Court against the Simferopol Trolley Bus Company, claiming compensation for pecuniary and non-pecuniary damage to her health caused by the accident. In particular, as pecuniary damage the applicant claimed compensation for medic in es, additional nutrition, treatment in a sanatorium , transport expenses, and compensation for loss of earnings.

7 . On 25 February 2003 the applicant lodged an application with the Court ( Litvinyuk v. Ukraine , no. 9724/03) complaining, inter alia, under Article 6 § 1 of the Convention about the lengthy examination of her case by the domestic courts.

8 . On 1 February 2007, while the proceedings were still pending before the national courts, the Court delivered a judgment on the applicant ’ s first application (no. 9724/03), finding that the length of the proceedings in her case had been excessive. The Court took into consideration the period after 11 September 1997, when the Convention had c o me into force in respect of Ukraine. The length of the proceedings within the Court ’ s competence was nine years and twenty two days.

9 . The Court, in particular, noted the following:

“47. As for the issues that were at stake for the applicant, the Court notes that following the traffic accident the applicant was seriously injured and received a disability degree. Given that the applicant was a single mother and had a child to raise, the compensations for loss of earnings and for expenses sustained as a result of a poor state of her health were of undeniable importance for the applicant. The Court therefore considers that what was at stake for the applicant called for an expeditious decision on her claims.”

10 . On 27 March 2007 the Simferopolskiy District Court found against the applicant. O n 24 December 2007 the Court of Appeal of the Autonomous Republic of Crimea quashed this decision and remitted the case to a first-instance court for fresh examination. On 23 April 2008 the Supreme Court of Ukraine upheld the d ecision of the court of appeal.

11 . On 13 May 2009 the Simferopolskiy District Court partly found for the applicant. O n 29 July 2009 the Court of Appeal of the Autonomous Republic of Crimea quashed this decision and remitted the case to a first-instance court for fresh examination. On 15 October 2009 the Supreme Court of Ukraine upheld the decision of the court of appeal.

12 . O n 10 November 2009 the Simferopolskiy District Court left the applicant ’ s case without consideration because she had failed to appear in court without giving plausible reasons on 28 October 2009 and 10 November 2009 . The applicant lodged an appeal against this decision stating that she had not been aware about the above-mentioned hearings. On 27 January 2010 the Court of Appeal of the Autonomous Republic of Crimea rejected the applicant ’ s appeal. The court noted that the applicant had been duly notified about the date of the hearings. On 5 October 2011 the Supreme Court of Ukraine upheld the decisions of the lower courts. A further attempt by the applicant to have the above decisions reviewed in the light of newly discovered circumstances was to no avail.

II . RELEVANT DOMESTIC LAW

Civil Procedure Code (as amended on 16 June 2009 )

13 . Article 293 § 1 (15) and Article 324 § 1 (2) of the Civil Procedure Code allowed decision s of the first-instance court on leaving the claim without consideration to be subject to review in the court of appeal and the court of cassation after they have been reviewed on appeal .

14 . Other relevant provisions of the Code provide as follows:

Article 307. Powers of the court of appeal instance

“ 2. ...[ T]he court of appeal instance has the power to:

(1) adopt a ruling dismissing the appeal and leaving the [contested] decision in force;

(2) adopt a ruling quashing the decision of the first-instance court and deliver a new decision;

(3) adopt a ruling varying the decision;

(4) adopt a ruling quashing the decision of the first-instance court and remit the case back for fresh consideration. ”

Article 336 Powers of the court of cassation instance

“2. ...[ T]he court of cassation instance has the power to:

(1) adopt a ruling dismissing the cassation appeal and leaving the [contested] decision in force;

(2) adopt a ruling quashing the decision and remitting the case back to the court of first instance or appeal for fresh consideration;

(3) adopt a ruling varying or quashing the decision [on the merits of the case] ;

(4) adopt a ruling quashing the decision of the court of appeal and leaving in force the judicial decision which was erroneously quashed by the court of appeal. ”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION

15 . The applicant complained that the length of the civil proceedings after the delivery of the Court ’ s judgment on her first application (no. 9724/03) had been incompatible with the “reasonable time” requirement and that she had no effective remedy in th at regard . She relied on Article 6 § 1 and Article 13 of the Convention, which read 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 ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

16 . The Government informed the Court that they were not in a position to submit observations on the case as it was impossible for them to obtain copies of the case-files, held by courts located in the Autonomous Republic of Crimea and in Sevastopol . [1]

17 . Although the applicant ’ s claim was left without consideration by the Simferopolskiy District Court on 10 November 2009 for her own failure to attend the hearings, the Court notes that the applicant challenged this decision before the higher courts. The proceedings pending examination on procedural issues lasted before the court of appeal instance and cassation nearly two years ( from 10 November 2009 until 5 October 2011 ) . It should be noted that pursuant to the relevant provision of the Civil Code of Procedure of Ukraine (see paragraphs 13 to 14 a bove), the consideration of the applicant ’ s appeal against the decision of 10 November 2009 could have resulted in this decision be ing quashed and the case be ing remitted to the first-instance court for further examination. Therefore, the way pursued by the applicant could have proved to be decisive for the outcome of the dispute in her case.

18 . T he Court also reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with (see Brualla Gómez de la Torre v. Spain , 19 December 1997, § 37, Reports of Judgments and Decisions 1997 ‑ VIII, and Andre jeva v. Latvia [GC] , no. 55707/00, § 97, ECHR 2009).

19 . In the light of the above , the period when the proceedings were pending examination on procedural issues must be seen as a part of the substantive litigation and accordingly as part of a “determination of ... civil rights and obligations” (see, mutatis mutandis, Belošević v. Slovenia , no. 7877/02, § 19, 6 April 2006) .

20 . Therefore, t he period to be taken into consideration began on 2 February 2007, on the day after the Court delivered its judgment on the applicant ’ s first application (no. 9724/03) , and ended on 5 October 2011. It thus lasted four years and eight months at three levels of jurisdiction.

A. Admissibility

21 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

22 . 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). In connection with the latter point, special diligence is necessary in disputes concerning the determination of compensation for victims of road accidents (see, inter alia , Silva Pontes v. Portugal , 23 March 1994, § 39, Series A no. 286 ‑ A).

23 . The Court notes from the outset that it is mindful of the fact that in its judgment on the applicant ’ s first application (no. 9724/03) it underlined that what was at stake for the applicant had called for an expeditious decision on her claims.

24 . The Court further notes that the present case to a certain extent is similar to th at of Ro ngoni v. Italy ( no. 44531/98, § § 11-16, 25 October 2001 ) , where the Court found excessive length in proceedings that lasted four years and nine months after the Court h ad found a violation of Article 6 § 1 of the Convention in respect of the original proceedings on the same issue, which had themselves had lasted for more than ten years.

25 . The Court further notes that in the present case there were several periods of delay that must be attributed to the judicial authorities. These include several remittals of the case for fresh examination to a first-instance court by the court of appeal (see paragraphs 10 to 11 above).

26 . The Court has frequently found violations of Article 6 § 1 and Article 13 of the Convention in cases which concerned similar issues of excessive length of civil proceedings (see Krasnoshapka v. Ukraine, no. 23786/02, 30 November 2006, Krivorotova v. Ukraine [Committee], no. 57166/08, 12 October 2017).

27 . T he Court notes that the above considerations, taken cumulatively and against the background of what was at stake for the applicant , warrant the conclusion that in the instant case the length of the proceedings after the Court ’ s judgment on the applicant ’ s first application (no. 9724/03) was excessive and failed to meet the “reasonable time” requirement.

28 . There has accordingly been a breach of Article 6 § 1 and Article 13 of the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

29 . 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.”

30 . Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Krivorotova , cited above ), the Court considers it reasonable to award the sum of 6 00 euros to the applicant .

31 . The Court considers it appropriate that the default interest rate 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 application admissible;

2 . Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant , within three months , the following amount , to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(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 .

Done in English, and notified in writing on 1 March 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Anne-Marie Dougin André Potocki Acting Deputy Registrar President

[1] Rectified on 4 April 2018: the text was “The Government did not submit any observations referring to any inability to obtain copies of the necessary documents located outside the State’s control in the Autonomous Republic of Crimea and in Sevastopol.”