FIFTH SECTION

CASE OF KADUK v. UKRAINE

( Application no. 21798/05 )

JUDGMENT

STRASBOURG

20 January 2011

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

In the case of Kaduk 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. 21798/05) 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 Larisa Vladimirovna Kaduk (“the applicant”), on 27 May 2005 .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y . Zaytsev .

3 . On 22 October 2008 the President of the Fifth Section 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.

On 27 November 2009 an additional question concerning the applicant ’ s complaint under Article 13 of the Convention was put before the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1967 and lives in the village of Solontsievka , Kharkiv Region , Ukraine .

5 . On 15 March 1998 the applicant ’ s husband , who worked as an electrician at the construction site, di ed as a result of a work-related accident. On 10 September 1998 the applicant instituted proceedings in the Dzerzhynsky District Court of Kharkiv against a joint stock company “T.” (“the company”) claim ing compensation for pecuniary and non-pecuniary damage sustained as a result of h is death.

6 . On 15 September 1998 the case was transferred to the Zhovtnevy District Court of Kharkiv , which on 24 January 2001 allowed in part the applicant ’ s claims.

7 . On 24 April 2001 the Kharkiv Regional Court [1] upheld this judgment. It became final.

8 . On 21 June 2001 the amendments to the Code of Civil Procedure entered into force. They provided a right to lodge a cassation appeal within a three-month period with the Supreme Court against court decisions adopted before 21 June 2001 and which had entered into force before that date. On 19 July 2001 the company lodged an appeal in cassation .

9 . On 28 February 2002 the Supreme Court quashed the decisions of the lower courts and remitted the case for a fresh consideration to the first instance court.

10 . In the course of the proceedings before the first instance court three other companies and the local department of the State Insurance Fund for Work-Related Accidents and Diseases (“the Fund”) were joined as co-defendants.

11 . On 10 March 2006 the Zhovtnevy District Court of Kharkiv found in part for the applicant . The court a warded her , inter alia , U AH 6 8 ,648.34 (about EUR 11,366 ) to be paid by the Fund.

12 . The Fund appealed against th at judgment; however, on 24 October 2006 the Kharkiv Regional Court of Appeal declined its appeal as lodged out of time. The Fund appealed in cassation. On 13 December 2007 the Lugansk Regional Court of Appeal, sitting as a court of cassation, quashed th at decision and remitted the matter of the admissibility of the appeal f or a fresh consideration .

13 . On 5 November 2008 the K harkiv Regional Court of Appeal partly allowed the appeal by the Fund and ruled that the above amount of UAH 6 8 ,648 .34 should be paid by the company and not by the Fund . It upheld the remainder of the judgment.

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 read s as follows:

Article 6 § 1

“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. ...”

15 . The Government contested the applicant ’ s complaint .

16 . The applicant instituted proceedings on 10 September 1998. The Court reiterates that it can take into account only those periods when the case was actually pending before the courts, thus excluding from calculation those periods between the adoption of the final and binding judgment s and their revocation in the course of the extraordinary proceedings (see Markin v. Russia ( dec .), no. 59502/00, 16 September 2004, and Pavlyulynets v. Ukraine , no. 70767/01, §§ 41-42, 6 September 2005 ). The Court notes that the judgment of 24 January 2001 became res judicata on 24 April 2001 , when it was upheld by the court of appeal. The Court further observes that i t was only by virtue of the introduction of the new transitional remedy on 21 June 2001 that the applicant was able to challenge th e decision s of the lower courts . In such circumstances, the recourse to the Supreme Court to challenge proceedings which had been brought to an end by a final decision must be seen as akin to a request to reopen those proceedings by means of the extraordinary transitional remedy provided for by the Law of 21 June 2001 (see Prystavska v. Ukraine ( dec .), no. 21287/02, ECHR 2002 ‑ X). Therefore, the period from 24 April 2001 to 28 February 2002 cannot be taken into account. The proceedings ended on 5 November 2008. They thus lasted about nine years and four months a t three levels of jurisdiction .

A. Admissibility

17 . The Court notes that t h i s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that t hey it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

18 . 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).

19 . The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to t he one in the present case (see Frydlender , cited above).

20 . 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 of the Convention.

I I. ALLEGED VIOLATION OF ARTICLE 1 3 OF THE CONVENTION

21 . T he applicant further complained under Article 13 of the lack of an effective remedy for the length-of-proceedings complaint . The relevant provision of the Convention reads as follows:

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 .”

A. Admissibility

22 . The Government submitted that this complaint should be declared inadmissible as the applicant cannot be considered a victim of the alleged violation.

23 . The applicant disagreed.

24 . The Court notes that this complaint was lodged by the applicant in April 2009. T he Court finds that it 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

25 . The Go vernment submitted that Article 13 was not applicable to the circumstances of the present case, since the applicant had never made out an arguable claim under Article 6 § 1.

26 . The applicant disagreed.

27 . The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v . Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). The Government did not name any such remedy available to the applicant.

28 . The Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding h er right to have h er case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention (see Efimenko v . Ukraine , no. 55870/00, § 64, 18 July 2006).

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO THE UNFAIRNESS OF THE PROCEEDINGS

29 . The appli cant complained under Article 6 § 1 of the Convention about unfairness of the proceedings in her case.

30 . The Court notes that the applicant failed to appeal in cassation against the decision of 5 November 2008 (see Vorobyeva v. Ukraine ( dec .), no. 27517/02, 17 December 2002).

31 . It follows that this part of the application must be declared inadmissible for non-exhaustion of domestic remedi es, pursuant to Article 35 §§ 1 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

33 . The applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

34 . The Government co ntested these claims.

35 . 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, ruling on an equitable basis, it awards the applicant EUR 2,400 in respect of non-pecuniary damage.

B. Costs and expenses

36 . The applicant , who was not represented before the Court, claimed UAH 1,300 (about EUR 120 ) for the legal expenses incurred before the Court. S he provided a receipt evidencing payment to a lawyer of the above amount for drafting documents to the Court. She also claimed UAH 212 . 79 (about EUR 20 ) for mailing her letters to the Court. The applicant provided postal receipts in support of this claim .

37 . The Government contested the claim of UAH 1,300. They left the claim of UAH 212 . 79 to the Court ’ s discretion.

38 . 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 documents in its possession and the above criteria , the Court considers it reasonable to award the applicant EUR 140 under this head.

C. Default interest

39 . 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 complaints concerning the excessive length of the proceedings and lack of an effective remed y in that respect admissible and the remainder of the application inadmissible ;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings ;

3 . Holds that there has been a violation of Article 1 3 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months , EUR 2,400 ( two thousand four hundred euros ) in respect of non-pecuniary damage and EUR 140 ( one hundred and forty euros ) f o r the costs and ex penses , 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 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 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

[1] S ince June 2001 the Kharkiv Regional Court of Appeal