BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KRIVOVA v. UKRAINE
(Application
no. 25732/05)
JUDGMENT
STRASBOURG
9
November 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 Krivova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 25732/05) 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 Mariya Mykhaylivna Krivova (“the
applicant”), on 5 July 2005.
- The
applicant, who had been granted legal aid, was represented by
Mr K.M. Buzadzhy, a lawyer practising in Kyiv. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that the State had failed to comply
with its positive obligations under Article 2 of the Convention and
that the length of the proceedings in her case had been in breach of
Article 6 § 1 of the Convention.
- On
12 March 2009 the
President of the Fifth Section decided to communicate the above
complaints to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Chervonograd, Lviv region,
Ukraine.
A. Background to the case
- On
30 November 1998 several schools organised a collective visit by
pupils to a local cinema, which was owned by the municipal company
E., for a film showing. The applicant's daughter, Ms Galyna Igorivna
Krivova, born in 1985, was among the pupils who visited that cinema.
While the first group of pupils was still watching the film, another
group of pupils for the next showing entered the auditorium. As a
result of a lack of control of entry to the auditorium during the
film, there was a stampede in which four children were trampled to
death and fourteen children, including the applicant's daughter,
received varying degrees of injury. The applicant's daughter, in
particular, was diagnosed with, inter alia, severe
post-traumatic hypoxic damage to the central nervous system
(посттравматичне
постгіпоксичне
ураження центральної
нервової
системи важкого
ступеню), a right sided
pneumothorax, and other injuries. According to the applicant, her
daughter was in a coma for two months.
- On
17 January 1999 the applicant's daughter was classified as
temporarily Category 1 disabled. Three years later, on 17 January
2002, she was classified as permanently disabled.
- The
applicant's daughter underwent inpatient medical treatment at least
until 18 February 1999, after which she periodically had medical
treatment and rehabilitation therapy.
- By a judgment of 13 March 2004 the Chervonograd Town
Court (“the Town Court”) declared the applicant's
daughter incapacitated. Apparently that judgment became final and on
29 April 2004 the Chervonograd Town Council appointed the
applicant as the legal guardian of her disabled daughter.
- At
the present time the applicant's daughter still suffers the
consequences of post-traumatic consequences and needs medical
assistance and nursing.
B. Investigation into the accident of 30 November 1998
and subsequent judicial proceedings
- On 30 November 1998 the Prosecutor's Office instituted
criminal proceedings and on an unspecified date indicted S., the head
of the E. company (it appears from the submitted documents that
criminal proceedings against other persons were also instituted but
were subsequently abandoned for various reasons).
- On
2 December 1998 a medical expert reported on the aforesaid injuries
to the applicant's daughter and identified them as serious.
- Meanwhile, on 1 December 1998 a special administrative
committee composed of nine experts was set up to investigate the
accident of 30 November 1998. On 10 December 1998 that committee
drew up a report which recommended that six persons be dismissed and
five others subjected to disciplinary sanctions.
- According to the applicant, the pre-trial
investigation was completed by 22 September 2000 and the case was
transferred to the Town Court.
- On 20 March 2001 the applicant lodged a civil claim
against S., seeking compensation for pecuniary and non-pecuniary
damage. Five other claims were also lodged with the court by other
victims.
- On
10 October 2003 the Town Court found S. guilty of abuse of authority
and forgery and sentenced him to seven years' imprisonment. The court
also banned S. from holding managerial positions for one year. As to
the civil claims, the court allowed them in part, awarding, in
particular, the applicant 15,000 Ukrainian hryvnias
(UAH; about 2,464.91 Euros (EUR) at the material time)
in respect of non-pecuniary damage, to be paid by S.
- On 27 April
2004 the Lviv Regional Court of Appeal (“the Court of Appeal”)
quashed that judgment because of procedural shortcomings of the trial
before the first-instance court. On 1 July 2004, having held a
re-trial, it found S. guilty of forgery in office (he had forged the
documents stating that he had taken necessary accident prevention
measures and instructed his subordinates) and negligence that had had
serious consequences, finding that the cinema personnel had not been
instructed and lacked relevant expertise, the auditorium had not been
properly equipped and the cinema tickets had been sold without
indication of time, row and seat. The court thus sentenced S. to five
years' imprisonment and banned him from holding managerial positions
for three years. However, in view of the Amnesty Act, the court
exempted S. from these punishments. Finally, the court awarded the
applicant UAH 143,556.69 (about EUR 22,771.80)
in respect of pecuniary damage and UAH 12,000 (about EUR
1,903.51) in respect of
non-pecuniary damage, to be paid by Chervonograd Town Council, as
well as UAH 6,000 (about EUR 951.75)
in respect of non-pecuniary damage, to be paid by S.
On
the last-mentioned day the Court of Appeal issued
a special ruling (окрема
постанова)
informing its head and the head of State Judges' Administration of
the delays in the case caused by the first-instance court.
- On 18 January 2005 the Supreme
Court of Ukraine amended the judgment of 1 July 2004,
replacing the amnesty with statutory limitation, as the reason for
S.'s exemption from the punishment. The court also quashed the
judgment in part related to the civil claims, casting doubts on the
liability of Chervonograd Town Council. Accordingly, it remitted that
matter for fresh consideration.
- It appears from the documents submitted that, at this
stage of the proceedings, the applicant and another civil claimant
requested the Court of Appeal to join to the
proceedings a number of legal persons (such as the schools which had
organised the pupils' collective visit to the cinema,
the E. company, the local department of education, etc.).
For these reasons, on 31 March 2005 the Court
of Appeal decided to remit the case to the Town Court.
- Subsequently, a clinic which had
treated the applicant's daughter brought its claim against the
defendants and joined the proceedings; the other claimants (some
other victims of the accident) withdrew their claims as being settled
extra-judicially. In the course of the proceedings the claimants
modified their claims on several occasions.
- On 31 March 2008 the Town Court
found in part for the applicant and other civil claimants. In
particular, it ordered the Chervonograd Town Council, the education
and culture departments of the Chervonograd Town Executive Committee
and S. to pay the applicant, who was acting on her own behalf and on
behalf of her daughter, in the specified proportions the total amount
of UAH 85,411.97 (about EUR 11,033.40 at the material time) in
respect of the care, medical, legal and other expenses she had
incurred from the date of the accident to 1 April 2008 and 175%
of the statutory minimum salary
after 1 April 2008, monthly. Additionally, the court awarded the
applicant the total amount of UAH 58,500 (about EUR 7,556.96
at the material time) in respect of non-pecuniary damage to be paid
by Chervonograd Town Council and the education and culture
departments of the Chervonograd Town Executive Committee. The court
also awarded damages to other victims of the accident, as well as to
the clinic in reimbursement of medical and
other expenses for treating the applicant's daughter.
- On
4 March 2009 the Court of Appeal allowed the
defendants' appeals in part and quashed the judgment in part
concerning the reimbursement to the clinic of medical and other
expenses for treating the applicant's daughter because it had been
claimed by the applicant, not the clinic, and the applicant's legal
expenses regarding the publication in a newspaper of details of the
court's hearings; consequently, it remitted these parts of the case
for fresh examination. It also reduced the awards to other victims
of the accident and upheld the remainder of the
judgment.
- On 14 August 2009 the Supreme
Court of Ukraine rejected the requests for leave to appeal in
cassation lodged by the Chervonograd Town Council and the education
and culture departments of the Chervonograd Town Executive Committee.
- Apparently,
the proceedings in the remitted part are still pending before the
first-instance court.
C. Enforcement proceedings
- On
6 July 2009 the State Bailiffs' Service instituted proceedings to
enforce the judgment of 31 March 2008, as
amended on 4 March 2009.
- The Chervonograd Town Council and the education and
culture departments of the Chervonograd Town Executive Committee
requested adjournment of the enforcement for six months, referring to
a lack of relevant funds. On 28 September 2009 the
Town Court allowed these requests.
D. Other measures taken by the authorities to redress
the consequences of the accident
- On 1 December 1998 the victims
of the accident were paid ex gratia
by the local authorities the total amount of UAH 30,000, out of
which the applicant was paid UAH 1,500 (about 394.74 United
States Dollars at the material time). She was further paid:
on
26 January 1999 – UAH 2,000 (about EUR 438.54);
on
5 March 1999 – UAH 12,000 (about EUR 2,789.21);
on 23 September 1999
– UAH 238 (about EUR 50.51);
on
2 September 2004 – UAH 2,000 (about EUR 300.39).
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine, 1996
- Articles
27, 55, and 56 of the Constitution on the right to life and right to
compensation for damage caused by authorities are set out in Kats
and Others v. Ukraine (no. 29971/04, § 75, 18 December
2008).
B. Criminal Code of Ukraine, 2001
29. Article
366 (forgery in office) of the Code provides as follows:
“1. Forgery in office, that is putting
any knowingly false information in official documents, any other
fabrication of documents, and also making and issuing knowingly false
documents, by an official, –
shall punishable by a fine of up to 50 tax-free minimum
incomes, or restraint of liberty for a term of up to three years,
with the deprivation of the right to occupy certain positions or
engage in certain activities for a term of up to three years. ...”
30. Article
367 (neglect of official duty) of the Code provides as follows:
“1. Neglect of official duty, that is
the failure of an official to perform, or the improper performance
of, his/her official duties due to negligence, where it caused
significant damage to the legally protected rights and interests of
individual citizens, or state and public interests, or interests of
legal entities, –
shall be punishable by a fine of 50 to 150 tax-free
minimum incomes, or correctional labour for a term of up to two
years, or restraint of liberty for a term of up to three years, with
the deprivation of the right to occupy certain positions or engage in
certain activities for a term of up to three years.
2. The same act that caused any grave
consequences, –
shall be punishable by imprisonment for a term of two to
five years with the deprivation of the right to occupy certain
positions or engage in certain activities for a term of up to three
years and with or without a fine of 100 to 250 tax-free minimum
incomes.”
31. Under
Articles 49 § 1 (3) and 74 § 5 of the Code, a person
convicted for an offense
of medium gravity
can be exempted from the punishment if a period of five years has
elapsed from
the date of the criminal offense to the effective date of the
judgment. An
offense
of medium gravity
is
punishable by imprisonment for a term of up to five years (Article 12
of the Code).
C. Civil Code, 1963 (in force at the material time)
- Articles
4401 (compensation for moral (non-pecuniary) damage) and
441 (liability of an organisation for damage caused through the fault
of its employees) of the Code are set out in Lovygina v. Ukraine
((dec.), no. 16074/03, 22 September 2009).
THE LAW
I. PRELIMINARY CONSIDERATIONS: STANDING OF THE APPLICANT
- The applicant named herself rather than her daughter
as a party to the present proceedings. She stated in this regard that
her daughter had been declared incapacitated and that since 29 April
2004 she had acted as her legal guardian. In addition, she claimed to
have victim status (see paragraphs 55 and 69 below).
- The
Government maintained that the applicant could only claim to be the
de facto authority of her daughter but not the indirect victim
of the alleged violations.
- The
Court reiterates that in order to be able to lodge an application in
pursuance of Article 34, a person, non-governmental organisation or
group of individuals must be able to claim “to be the victim of
a violation ... of the rights set forth in the Convention ...”.
In order to claim to be a victim of a violation, a person must be
directly affected by the impugned measure (see, as the recent
authority, Micallef v. Malta [GC], no. 17056/06, § 44,
ECHR 2009 ...; for recapitulation of relevant principles, see
loc. cit., §§ 45-48).
- In the present case, Ms Galyna Igorivna Krivova was
the immediate victim of the accident. The Court considers that it
would generally be appropriate for an application to name the injured
person as the applicant and for a letter of authority to be provided
allowing another member of the family to act on his or her behalf.
This would ensure that the application was brought with the consent
of the victim of the alleged breach and would avoid actio
popularis applications (see İlhan v. Turkey [GC],
no. 22277/93, § 53, ECHR 2000 VII).
- However,
the Court observes that the domestic courts recognised Ms Galyna
Igorivna Krivova as incapacitated and appointed Ms Mariya
Mykhaylivna Krivova as her guardian (see paragraph 9
above). Accordingly, the Court does not see any abuse in the fact
that the latter named herself as the applicant in the present
proceedings. Nor does it discern any other grounds to turn down the
complaints concerning the infringements of her daughter's rights
because of this very fact (ibid., §§ 54-55).
- As to whether the applicant can claim herself to be a
victim of the alleged violations, the Court notes that there was no
infringement of her life in the present case and therefore she cannot
be regarded as the victim of the alleged violation of Article 2 of
the Convention. However, she can claim to be a victim of the
remainder of the alleged violations, notably of Article 6 § 1
of the Convention, given that she took part in the domestic
proceedings also on her own behalf (see paragraph 21 above).
- Having
regard therefore to the foregoing considerations, the Court finds
that the applicant may be regarded as the de facto authority
of her daughter and thus has standing to introduce the complaints
concerning the infringements of her daughter's rights. She has also a
separate standing with respect to the complaints concerning the
length of proceedings (Article 6 § 1 of the
Convention) and her right to work.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The applicant complained that the State authorities
were responsible for the accident of 30 November 1998 and had
violated her daughter's right to life. She also complained that the
State authorities had failed to investigate the accident of
30 November 1998 effectively and to punish those responsible for
it. In this respect she relied on Article 2 of the Convention which
reads as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law. ...”
A. Admissibility
1. Parties' submissions
- The
Government argued that the applicant had lost her victim status. In
particular, they noted that following the accident of 30 November
1998, the criminal investigation had been carried out and the
responsible persons had been identified, charged and convicted,
whereas the other persons had been subjected to a disciplinary
sanction. Additionally, the domestic courts, having found the local
authorities liable, had awarded the applicant damages. Although that
judgment had been partly quashed on appeal, the applicant's award had
been upheld. Furthermore, neither the judgment nor the Court
of Appeal's decision had been appealed against by the
applicant who, on the other hand, sought their enforcement. In the
Government's view, the above facts show that the domestic authorities
had expressly acknowledged and afforded the applicant redress for the
breach of Article 2 of the Convention.
- The
applicant challenged the Government's conclusions. In particular, she
pleaded that there had been no acknowledgment by the State as the
domestic courts had convicted S. for negligence and forgery, but not
for unintentional murder as charged initially, and further had
exempted him from the punishments in view of the statutory
limitation, while her daughter had been “hanging between life
and death”. The latter, in her view, proved that the
investigation had not been effective. In addition, the authorities
had failed to take any steps to remedy the after-effects of the
accident (for example, further treatment, rehabilitation and
re-socialisation for her daughter) and the domestic courts had
dismissed her claim to that end. Lastly, she maintained that the
award, after having become final, had still not been enforced.
- As
to the adequacy of the legal remedies, the applicant admitted that
there had been relevant legal remedies at the time capable of
establishing the facts, holding accountable those at fault and
providing appropriate redress to a victim. However, in her view,
those remedies had been inadequately implemented and, as stated
above, S. had been exempted from the punishments.
2. Court's assessment
- The
Court reiterates that Article 2 does not solely concern deaths
resulting from the use of force by agents of the State but also, in
the first sentence of its first paragraph, lays down a positive
obligation on States to take appropriate steps to safeguard the lives
of those within their jurisdiction (see, for example, L.C.B. v.
the United Kingdom, 9 June 1998, § 36, Reports
of Judgments and Decisions 1998 III, and Paul and Audrey
Edwards v. the United Kingdom, no. 46477/99, § 54,
ECHR 2002-II). This positive obligation entails above all a primary
duty on the State to put in place a legislative and administrative
framework designed to provide effective deterrence against threats to
the right to life. However, the obligations deriving from Article 2
do not end there. Where lives have been lost in circumstances
potentially engaging the responsibility of the State, that provision
entails a duty for the State to ensure, by all means at its disposal,
an adequate response – judicial or otherwise – so that
the legislative and administrative framework set up to protect the
right to life is properly implemented and any breaches of that right
are repressed and punished (see, for example, Öneryıldız
v. Turkey [GC], no. 48939/99, §§ 89 and 91,
ECHR 2004 XII and, more recently, Budayeva and Others v.
Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and
15343/02, §§ 129 and 138, ECHR 2008 ...
(extracts)).
- The
Court begins by noting that although the applicant's daughter
survived, given the number of casualties of the accident of
30 November 1998, the fatal outcome thereof, the
seriousness of the injuries inflicted on the applicant's daughter
and, in particular, that she was in a coma for two months, it takes
the view that the life of the applicant's daughter was at serious
risk and the fact that she survived is fortuitous. It is of the
opinion that Article 2 of the Convention is applicable in the instant
case (see, mutatis mutandis, Makaratzis v. Greece [GC],
no. 50385/99, §§ 52-55, ECHR 2004 XI, and
Budayeva and Others v. Russia, cited above, § 146).
- The
Court further observes that the parties to the present case did not
analyse in their submissions whether at the time relevant legislative
and administrative framework had existed and whether that
framework was being implemented effectively. Accordingly, the Court
sees no reason to dwell on the matter proprio motu (see
Kalender v. Turkey, no. 4314/02, § 44,
15 December 2009) and moves to the question of whether there was
an adequate response to the infringement of Article 2.
- As
seen from the facts of the present case (paragraphs 13, 17, 18
and 21), S. was eventually convicted but exempted from the
punishment, whereas the other persons were subjected to disciplinary
sanctions, the local authorities were held liable and the applicant
was awarded compensation.
- In this respect the Court reiterates that, according
to its case law, the applicant may lose the status of “victim”
in instances where “the national authorities have acknowledged,
either expressly or in substance, and then afforded redress for, the
breach of the Convention” (see Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI). In the specific
context of establishing State liability for breaches of Article 2, it
has previously found that successful civil or administrative
proceedings were sufficient to deprive the applicant of his or her
victim status (see Caraher v. the United Kingdom (dec.),
no. 24520/94, ECHR 2000 I; Murillo Saldias and Others v.
Spain (dec.), no. 76973/01,
28 November 2006; and more recently, Salatkhanovy v. Russia,
no. 17945/03, §§ 75-78, 16 October 2008).
- Contrary to the applicant's submissions that there had
been no acknowledgment by the State, on the grounds that S. had got a
lenient sentence and subsequently had been exempted from the
punishments, the Court notes that Article 2 should not be
interpreted as entailing the right for an applicant to have third
parties prosecuted or sentenced for a criminal offence (see, mutatis
mutandis, Perez v. France [GC], no. 47287/99, §
70, ECHR 2004-I) or an absolute obligation for all prosecutions to
result in conviction, or indeed in a particular sentence (see,
mutatis mutandis, Tanlı v. Turkey, no. 26129/95,
§ 111, ECHR 2001-III). Furthermore, in cases of
unintentional infringement of the right to life or to physical
integrity, the criminal proceedings are not necessarily required to
be brought in every case; the availability of civil, administrative
or even disciplinary remedies to the victims may suffice (see, for
example, Calvelli and Ciglio v. Italy [GC], no. 32967/96,
§ 51, ECHR 2002 I; Vo v. France [GC],
no. 53924/00, § 90, ECHR 2004 VIII; and
Mastromatteo v. Italy [GC], no. 37703/97, §§ 90
and 94-95, ECHR 2002 VIII).
- It
is not disputed in the present case that the accident of 30 November
1998 had taken place because of the negligent acts by the State
authorities. It follows that criminal prosecution and punishment of
those responsible were not required in the instant case for the
purposes of Article 2 of the Convention. At the same time, having
regard to the domestic courts' decisions holding the local
authorities liable, the Court considers that the national authorities
have acknowledged the breach at issue.
- As
to the adequacy of the awarded compensation the Court notes that the
applicant did not appeal domestically against the judgments of
31 March 2008 and 4 March 2009 and
therefore it is not open to her to challenge the amounts at the
international level. It also notes the other uncontested ex
gratia payments by the authorities
to the applicant (see paragraph 27 above and, for example,
Lovygina v. Ukraine, cited above).
- With
regard to the alleged non-enforcement of the judgment in the
applicant's favour, the Court considers that the complaint must be
addressed under Article 6 § 1 of the Convention (see
paragraphs 61 and 62 below), rather than under Article 2.
- The
Court lastly notes that the applicant's submissions on the adequacy
of the legal remedies are limited to leniency of sentence for S. and
his exemption from the punishments, which are not sufficient in
themselves for finding a violation of Article 2 of the Convention, as
stated above, and that she had not put forward any other relevant
arguments.
- In
the light of the foregoing, the Court considers that the above
complaints must be declared inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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
reads as follows:
“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 complaint 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
1. Period to be considered
- The
Government submitted that the period in question had started on 20
March 2001 when the applicant had brought a civil action in the
course of the criminal proceedings. They took a view that the period
of criminal investigation preceding that date should not be taken
into account.
- The
applicant disagreed, arguing that both criminal and civil limbs of
the proceedings should be taken into account.
- Although
the right to institute criminal proceedings and to secure the
conviction of a third party is not a right which is included among
the rights and freedoms guaranteed by the Convention (see, for
example, Perez v. France, cited above, § 70),
Article 6 § 1 may nevertheless apply to those
proceedings where the civil limb remains so closely linked to the
criminal limb that the outcome of the criminal proceedings may be
decisive for the civil claims (see, for example, Calvelli and
Ciglio v. Italy, cited above, § 62).
- Turning
to the facts of the present case, the Court agrees that there was a
certain nexus between the criminal investigation into the accident
and the applicant's claim for damages. However, the applicant failed
to put forward any argument in support of her stance that the
proceedings, including their criminal and civil limbs, should be
taken into account in their entirety. There is no evidence that a
criminal investigation into the events was necessary to enable the
applicant to lodge a civil claim or that it was not possible for the
applicant to bring her claim earlier (see, a contrario, Koziy
v. Ukraine, no. 10426/02, § 25, 18 June
2009).
- The Court further reiterates
that the court proceedings and the enforcement proceedings are stages
one and two in the total course of proceedings (see Scordino
v. Italy (no. 1) [GC], no. 36813/97,
§ 197). Therefore, the enforcement proceedings should not
be dissociated from the action and the proceedings are to be examined
in their entirety (see Estima Jorge
v. Portugal, 21 April 1998, §
35, Reports of Judgments and
Decisions 1998 II, and Sika
v. Slovakia, no. 2132/02, §§ 24-27,
13 June 2006).
- Given that the enforcement of
the judgment in the applicant's favour was adjourned till 28 March
2010 and the Government did not provide any information about any
progress in that respect, the Court considers that the proceedings in
question have not yet ended.
- Accordingly,
the Court concludes that the period to be taken into consideration
began on 20 March 2001 and has not yet ended. It thus has thus lasted
over nine years for three levels of jurisdiction.
2. Reasonableness of the length of proceedings
- The
Government, referring to the complexity of the case, number of
participants and conduct of the parties to the proceedings, pleaded
that the proceedings had been held within the reasonable time. In
particular, they submitted that the authorities had carried out
twenty-three forensic examinations and interrogated more than six
hundred witnesses. The criminal limb of the proceedings had been also
complicated by civil actions brought by the victims, numbering in
total up to twelve persons. The civil limb of the proceedings had
been complicated by the claimants, including the applicant, who had
enjoyed their procedural rights (for example, modified their claims,
inter alia, indicating new defendants to the case whose number
on different stages of the proceedings ranged from four to eight,
appealed against court decisions, lodged various requests, etc.). On
several occasions the parties had requested the hearings be adjourned
and had failed to appear before the courts, which according to the
Government had delayed the progress of the proceedings for eleven
months. The domestic authorities, on the other hand, had caused no
delays and a fortiori had taken measures to speed up the
proceedings. Accordingly, the Government concluded that there had
been no violation of Article 6 of the Convention in the present case.
- The
applicant disagreed. In particular, she stated that the case had not
been particularly complicated and that all necessary facts had been
established by the very first judgment (that is by 10 October 2003),
but that the examination had been protracted for several years. She
further averred that she had attended every court hearing to which
she had been summoned and that the Government had failed to rebut
that fact. She also contended that she had had to modify her claims
because of the protracted examination and evolving circumstances of
the case.
- 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 cases concerning liability for negligent acts
that resulted in loss of life or grave damage to health, the
authorities are under a duty to exercise special diligence and
conduct the proceedings with particular expedition (see, mutatis
mutandis, Silva Pontes v. Portugal, 23 March 1994, § 39,
Series A no. 286 A; Dodov v. Bulgaria,
no. 59548/00, § 109, ECHR 2008 ... and Kalender
v. Turkey, cited above, § 65).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, Kalender v. Turkey, cited above,
§ 67).
- 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.
IV. OTHER ALLEGED VIOLATIONS
- Lastly, the applicant complained without reference to
any provision that she had been deprived of the right to work as she
had to look after her disabled daughter.
- Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
V. 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 the amounts awarded to her by the judgment of 31
March 2008 which had remained unenforced in respect of pecuniary
damage and EUR 100,000 in respect of non-pecuniary damage.
- The
Government contested these claims. They argued, inter alia,
that the issue of the lengthy non-enforcement of the judgment in the
applicant's favour was not the subject-matter of the present
proceedings before the Court.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects that claim. On
the other hand, it considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards her
EUR 3,500 under that head.
B. Costs and expenses
- The
applicant also claimed UAH 3,087.15 (about EUR 300) for
travel and postal expenses, out of which UAH 79.46 (about
EUR 7.70) had been incurred before the Court. In support she
provided copies of relevant receipts.
- The
Government contested the claims in respect of travel expenses, but
left the matter of postal expenses to the Court's discretion.
- 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 legal aid already given to the applicant, the violation found,
the documents in its possession and the above criteria, the Court
makes no award under this head.
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
- Declares by a majority the complaint under
Article 6 § 1 of the Convention concerning the excessive length
of the proceedings admissible and the remainder of the application
inadmissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
- Holds unanimously
(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 3,500
(three thousand and five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 9 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following partially dissenting
opinion of Judge Yudkivska
is annexed to this judgment.
P.L.
C.W.
PARTIALLY DISSENTING OPINION OF JUDGE YUDKIVSKA
Whilst
I voted with the majority for finding a violation of Article 6 of the
Convention, I am far from considering this issue to be the central
one in the present case.
The
school administration organised a cultural outing to the cinema,
which ended with four pupils never coming back and sixteen, including
the applicant's daughter, becoming invalids. In the twelve years
since the tragedy the compensation granted by the domestic judicial
authorities has not been received. Thus, the core problem of the
case, in my view, involves the State's positive obligation under
Article 2 of the Convention.
Firstly,
it concerns the duty to safeguard the lives of those under its
jurisdiction.
The
Court has already stated, albeit in a different context of a major
international event, that a State “must take the appropriate
security measures and deploy every effort to ensure that order is
maintained. Hence, it is incumbent upon it to prevent disturbances
which could lead to violent incidents”.
Similar reasoning could be applicable in the present case, as the
tragedy appears to have been a consequence of improper planning of
the event. Educational authorities organized a mass event – an
excursion to the cinema – for a large number of teenagers. The
second group of teenagers was let into the auditorium before the
previous showing ended, they wanted to choose better places while the
first group wanted to finish watching a movie, and that is how a
scuffle ensued and a peaceful cultural event degenerated into
violence. The role of the school authorities - organisers of the
event - who were responsible for the children and had the duty to
prevent the riot or at least to react immediately to its first signs,
went uninvestigated, as well as appropriate regulatory framework and
its effective functioning. The conviction of the cinema's director
for negligence does not cast full light upon the planning and conduct
of the mass event, which resulted in a loss of lives.
Apparently,
this dangerous accumulation could have been prevented. It is true
that in general panic is hardly foreseeable or predictable, being a
mass psychological phenomenon, and that all mass events entail
certain risk (consider the recent “Love Parade disaster”
in Duisburg in July 2010 or the “Bagdad bridge stampede”
in 2005). But in the present case we are talking about teenagers who
were very excited to see the famous blockbuster in a
poorly equipped and secured cinema with fewer seats than expected (as
was shown in the domestic proceedings) and whose behaviour was quite
predictable. In these circumstances the tragedy was foreseeable and
avoidable; and I regret that the majority refused to examine if there
had been failure on the part of the authorities to safeguard the
right to life of the applicant's daughter in consequence of lack of
adequate planning of the event.
Secondly,
according to the Court's case-law, even where the infringement of the
right to life or to personal integrity is not caused intentionally,
the States are nevertheless required to set up an effective
independent judicial system so that the
cause of death can be determined and those responsible made
accountable. “Effective” means, inter alia, that
it must be conducted with reasonable expedition. In the context of
medical negligence, the Court repeatedly stated that “the
requirements of Article 2 of the Convention will not be
satisfied if the protection afforded by domestic law exists only in
theory. It must also operate effectively in practice, which requires
a prompt examination of the case without unnecessary delay”.
Applying
this principle, the Court found a violation of Article 2 in Oyal v.
Turkey on the ground that administrative court proceedings that
lasted for about nine years did not meet the requirements of
promptness and reasonable expedition. In another case involving
medical negligence, Dvořáček and Dvořáčková
v. Slovakia (no. 30754/04, 28 July 2009), a failure to
respect the requirement of promptness and reasonable expedition in
dealing with the case also led to a finding of a violation of Article
2 of the Convention. Likewise, in G.N.
and Others v. Italy (no. 43134/05, 1 December 2009), the
Court held that proceedings on compensation claims brought by persons
infected following blood transfusions that had lasted from three and
a half years to over ten years failed to meet the requirements of
Article 2 of the Convention.
In
the present case the criminal proceedings lasted for more than
six years, the proceedings with respect to damages lasted for
about nine years, and the final judgment in the applicant's and other
victims' favour was never enforced.
Needless
to say, given that the applicant's daughter required urgent and, most
probably, expensive medical treatment, the tragic circumstances of
the present case called for its prompt examination and grant of
appropriate redress. It is true that, as stated in paragraph 51, the
applicant received some ex gratia payments from the local
authorities; however the framework for these spontaneous payments
remained unclear and, in any event, they have no bearing on the
Article 2 requirement of an effective judicial system.
Moreover,
the determination of all circumstances of the disaster and the
measure of the responsibility of those involved appears to be
essential to enable the relevant authorities to adopt strategies in
order to prevent such tragic events in future. (see, mutatis
mutandis, Šilih v. Slovenia [GC],
no. 71463/01, § 196, 9 April 2009). The prompt
examination of the case was thus of crucial importance from the
standpoint of Article 2.
Thus,
I remain convinced that in the circumstances of the present case it
is not simply the excessive length of the proceedings which was in
issue, but the question of whether the State can be said to have
complied with its positive obligations under Article 2 of the
Convention. In view of the foregoing considerations I am unable to
agree with the majority that the complaint under Article 2 is
manifestly ill-founded. In line with above-mentioned case-law, I find
that this complaint is well-founded, and this provision was violated.
If this approach had been approved, no separate issue would have
arisen under Article 6.
