CASE OF SVETLANA NAUMENKO v. UKRAINE
Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 with regard to the right to a court;Violation of Art. 6-1 with regard to impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Zoryana Bortnovska
9. The applicant, Mrs Svetlana Borisovna Naumenko, was born on 26 January 1956 and currently resides in Odessa. 10. On 5 May 1991 the applicant was recognised as having been a relief worker at the 1986 Chernobyl Nuclear Plant disaster. The appropriate certificate (an identity card) was issued to the applicant by the Ministry of Health of the Ukrainian Soviet Socialist Republic. 11. In November 1991 the applicant was recognised as falling within the second category of invalidity in relation to her participation in the relief work at Chernobyl. 12. On 22 April 1992 the Ministry of Health of the Ukrainian Soviet Socialist Republic annulled the certificate issued on 5 May 1991 because the applicant had not stayed and worked in the “Chernobyl alienation zone” (тридцятикілометрова зона або зона відчудження)*. 13. On 7 November 1992 the Ministry of Health dismissed a petition filed by the chief doctor of the Odessa City Ambulance Service (the applicant's place of employment) requesting that the employees (including the applicant) of the Odessa City Ambulance Service who had worked in the alienation zone be given the status of relief workers. 14. On 1 September 1993 the Ministry of Chernobyl Affairs informed the chief doctor of the Odessa City Ambulance Service that there were no documents proving that the employees had stayed in the alienation zone. 15. In February 1994 the applicant lodged complaints with the Illichevsk District Court of Odessa, seeking to establish that she had indeed stayed in the alienation zone. On 3 March 1994 the Illichevsk District Court of Odessa delivered a judgment in which it accepted that the applicant had stayed in the alienation zone on 27 and 29 May 1986. The judgment became enforceable on 14 March 1994. 16. On 6 October 1994 the Odessa Regional Court dismissed as groundless the motion filed by the Chairman of the Odessa Regional Council's Commission on the Status of Victims of the Chernobyl Catastrophe to reverse the judgment of 3 March 1994. 17. On 28 December 1994 the Odessa Regional Council issued a certificate (an identity card) acknowledging the applicant's status as a victim of the Chernobyl disaster, as established by the decision of 3 March 1994. 18. On 8 June 1995 the Cabinet of Ministers adopted Resolution no. 404 introducing amendments to its earlier Resolution of 25 August 1992 no. 501 on the Procedure for the Issue of Certificates (Identity Cards) to Victims of the Chernobyl Catastrophe. By virtue of these amendments, court judgments could not serve as a basis for the issue of certificates (identity cards) nor provide proof of being a victim of the disaster and thereby give entitlement to special State benefits and social payments. 19. On 14 December 1995 the Commission on Disputes of the Ministry of Chernobyl Affairs refused to confirm the applicant's status as a Chernobyl victim since the relief work had taken place outside the alienation zone. 20. On 18 January 1996 the Odessa Regional Council's Commission on the Status of Victims of the Chernobyl Catastrophe (the “Commission”) annulled the decision of 28 December 1994 by which a certificate was issued to the applicant. 21. On 6 March 1996 the Chairman of the Department of Social Security of the Odessa Regional Council adopted a decision withdrawing the certificate from the applicant, suspending her social security payments and annulling the benefits awarded to her as a victim of the Chernobyl disaster. 22. On 18 June 1996 the Commission adopted a decision annulling the certificate. 23. In August 1996 the applicant lodged a complaint with the Supreme Court. 24. On 9 August 1996 the Supreme Court informed the applicant by letter that the refusal to issue a certificate could be appealed in accordance with the procedure established by law. 25. On 12 January 1999 the applicant instituted proceedings in the Primorsky District Court of Odessa in order to annul the decision of 18 January 1996 and to oblige the Commission to recognise her status as a Chernobyl victim and to re-issue the certificate. 26. On 26 January 1999 the District Court allowed her claims and declared the actions of the Commission unlawful. It also annulled the Commission's decisions and ordered it to issue a document recognising the applicant's status as a Chernobyl victim. The decision became enforceable on 6 February 1999. 27. On 6 February 1999 the Commission annulled its decision of 18 January 1996 and confirmed the applicant's status as a relief worker. The applicant's name was entered in the register of disabled Chernobyl relief workers. 28. In April 1999 the Deputy Chairman of the Odessa Regional Council's Commission on the Status of Chernobyl Victims filed a motion with the President of the Odessa Regional Court, requesting the President to lodge a protest against the decision of 26 January 1999 with a view to quashing it. 29. On 7 May 1999 the President of the Odessa Regional Court dismissed this petition as unsubstantiated. 30. On 14 January 2000 the Commission issued a Chernobyl victim identity card to the applicant. The applicant's name was also entered in the list of persons who had requested improved living conditions. 31. On 21 March 2000 the applicant filed a motion with the Primorsky District Court of Odessa for an interpretation of its judgment of 26 January 1999. She also requested that the Commission calculate her benefits and pension as from 18 January 1996 and compensate her for arrears in benefits from that same date. 32. On 28 March 2000 the Primorsky District Court of Odessa allowed the applicant's claims and ruled that the amount of compensation, arrears and benefits was to be calculated and paid to the applicant as from 18 January 1996. 33. On 15 June 2000 the applicant requested the Primorsky District Court of Odessa to issue her a writ of execution in respect of the ruling of 28 March 2000. On 13 July 2000 the Primorsky District Court of Odessa allowed the applicant's request and issued this writ. 34. The execution proceedings commenced on 19 July 2000, i.e. two days after the Illichevsk District Execution Service of Odessa Region had received the writ. 35. On 11 August 2000 the Illichevsk District Execution Service held that it had no jurisdiction over the enforcement of the ruling in the applicant's case. 36. On 29 August 2000 (28 August 2000 according to the Government) the Deputy President of the Odessa Regional Court lodged a protest with the Presidium of the Odessa Regional Court, requesting that the case be re-examined and the judgment of the Illichevsk District Court of Odessa of 3 March 1994 establishing the fact of the applicant's stay in the alienation zone reversed. 37. On 6 September 2000 the Presidium of the Odessa Regional Court allowed the protest and quashed the decision of 3 March 1994. It also remitted the case to the Illichevsk District Court of Odessa for re-consideration. 38. On 16 July 2001 the Illichevsk District Court of Odessa upheld the applicant's complaint, finding that she had stayed in the alienation zone on 27 and 29 May 1986. 39. On 14 August 2001 the Odessa Regional State Administration lodged an appeal against the judgment of 16 July 2001. 40. On 12 October 2001 the case file was transferred to the Odessa Regional Court of Appeal. However, it was sent back to the Illichevsk District Court of Odessa on 25 October 2001 since it was necessary to rule on the request for leave to appeal against the decision of 16 July 2001. 41. On 12 November 2001 the Illichevsk District Court of Odessa found that the Odessa Regional State Administration had failed to comply with the formalities envisaged by law for the introduction of appeals. The Administration was given until 20 November 2001 to rectify this shortcoming. 42. On 23 November 2001 the Odessa Regional Council rectified the shortcoming and appealed against the decision of 16 July 2001, seeking its annulment. 43. On 6 December 2001 the Illichevsk District Court of Odessa extended until 10 December 2001 the time-limit for the Odessa Regional State Administration to lodge a petition. 44. On 28 December 2001 the Odessa Regional Court of Appeal sent the case file to the Illichevsk District Court of Odessa requesting it to rule on the formal defects in the appeal that had been introduced out of time. 45. On 29 January 2002 the Illichevsk District Court of Odessa allowed the Administration's motion to extend the time-limit for filing an appeal with the Odessa Regional Court of Appeal. 46. On 1 February 2002 the Illichevsk District Court of Odessa sent the case file to the Odessa Regional Court of Appeal. 47. On 22 February 2002 the Odessa Regional Court of Appeal decided to initiate appeal proceedings in the case and scheduled a hearing on the merits for 14 May 2002. 48. On 14 May 2002 the Odessa Court of Appeal quashed the decision of 16 July 2001 and remitted the case to the same first-instance court. 49. On 17 July 2002 the case file was remitted to the Illichevsk District Court of Odessa for further consideration. 50. Between 12 August 2002 and 23 September 2002 the case could not be heard as the judge was on leave. 51. The case was scheduled for examination on 18 October 2002. 52. The hearing was adjourned to 8 November 2002 as the Ministry of Health, the State enterprise RUZOD and the Ministry of the Interior had failed to comply with the court's order of 17 July 2002 to provide relevant documentary evidence of the applicant's involvement in relief work at Chernobyl. The evidence requested by the court did not arrive until 18 October 2002. 53. On 8 November 2002 the Illichevsk District Court of Odessa held a hearing in the applicant's case. On the same date the court postponed the hearing until 29 November 2002 in order to summon specific witnesses. 54. On 29 November 2002 the hearing was rescheduled for 19 December 2002 as the Administration had requested that additional witnesses be summoned. 55. On 19 December 2002 the court heard the additional witnesses. It also scheduled another hearing for 16 January 2003 in order to allow time for the transfer of the case file relating to the applicant's status as a Chernobyl relief worker from the Primorsky District Court of Odessa. 56. On 16 January 2003 the hearing was rescheduled as the Administration's representative did not have a valid letter of authority. The next hearing was scheduled for 22 January 2003. 57. On 22 January 2003 the applicant lodged a motion with the court seeking the adjournment of the hearing in her case so that she could provide additional information about her claims. The hearing was rescheduled for 10 February 2003. 58. On 6 March 2003 the Malinovsky District Court of Odessa (the case having been transferred to this court in accordance with the territorial division of the districts of Odessa) found that the applicant had been a relief worker at the Chernobyl Nuclear Power Plant in 1986 and had stayed in the “alienation zone”. There was no appeal against this decision and it became final on 8 April 2003. 59. On 13 March 2003 the Malinovsky District State Execution Service initiated execution proceedings in the case. 60. The decision of 6 March 2003 was executed on 8 May 2003 once the applicant had received the Chernobyl victim certificate. 61. On 12 May 2003 the Malinovsky District State Execution Service terminated the execution proceedings since they had been completed. 62. On 13 November 2003 the Malinovsky District Court of Odessa gave an interpretation of the judgment of 6 March 2003 to the effect that the applicant stayed in the alienation zone from 26 May to 4 June 1986. 63. 24 May 2004 the Malinovsky Distrtict Court of Odessa awarded the applicant UAH 13,253.01 in unpaid pension for the period from 1 September 1996 to 1 November 2003. It also held that the applicant's monthly salary should be UAH 307,65. 64. Relevant provisions of the Constitution read as follows: “... The main principles of judicial proceedings are: 1) legality; ...9) the mandatory nature of court decisions.” 65. Relevant provisions of the Code of Civil Procedure read as follows: “Court decisions, rulings and resolutions may be reviewed in supervisory review proceedings following a protest lodged by the officials designated in Article 328 of the Code of Civil Procedure of Ukraine.” “The following persons have the right to lodge a protest against an enforceable court judgment, ruling or resolution: ...2) presidents of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts and their deputies - against decisions and rulings of the district (city), inter-district (county) court, and also against the cassation rulings of the civil division of the Supreme Court of the Crimea, regional courts, and the Kyiv and Sevastopol city courts; ...” “The following courts hear cases in supervisory review proceedings: ... 3. The Presidium of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts: as regards protests lodged by the President of the Supreme Court of Ukraine, the General Prosecutor of Ukraine and their deputies, Presidents of the Supreme Court of the Crimea, regional, Kyiv and Sevastopol city courts and their deputies - against the judgments and rulings of the district (city), inter-district (county) courts and against judgments of the district (city) courts, inter-district (county) courts and against the cassation rulings of the Supreme Court of the Crimea, regional courts, Kyiv and Sevastopol city courts; ...” “Officials who have the right to lodge a protest may suspend execution of the relevant judgments, rulings and resolutions until the end of the supervisory review proceedings. The lodging of a protest against a judgment adopted following a complaint about unlawful actions by an official who interferes with the citizen's lawful rights suspends execution of that decision until the end of the supervisory review proceedings.” “Parties and other persons participating in the case have the right to lodge written explanations regarding the protest. Persons informed about the place and time of consideration of the case can at their request participate in the proceedings. Their absence does not influence the consideration of the case.” “When considering a case in supervisory review proceedings, the court has the right by its ruling or resolution to: 1) leave a judgment, ruling, resolution without changes, and refuse a protest; 2) annul a judgment, ruling or resolution in whole or in part and remit the case for re-consideration to the court of first or cassation instance; 3) annul a judgment, ruling or resolution fully or partially and terminate proceedings in a case or leave it without consideration; 4) leave one of the previously adopted judgments in the case, or one of the rulings or resolutions without satisfaction; 5) “The directions of the court that made the supervisory review are binding on the court which later re-examines the case. These directions are binding within the limits established by Article 319 of this Code. When considering a case in supervisory review proceedings or annulling the cassation decision, the court has no authority to determine the conclusions that could be made in the course of re-consideration of the case by the cassation court.” 66. Relevant provisions of the Law of 21 June 2001 read as follows: “1. This Law shall enter into force on 29 June 2001... 3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local court judgments. 4. Protests against judgments lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the cassation procedure. 5. Judgments that have been delivered and which have become enforceable before 29 June 2001 can be appealed against within three months in accordance with the cassation procedure (to the Supreme Court of Ukraine).” 67. Relevant provisions of the Law of 28 February 1991 read as follows: “Relief workers dealing with the consequences of the Chernobyl nuclear power plant disaster are those citizens who took part directly in any work related to dealing with the disaster itself or its consequences in the alienation zone in 1986-1987 regardless of the number of days worked, and in 1988-1990 – for not less than 30 calendar days, including the evacuation of persons and property from this zone, and those temporarily present there or assigned there from their place of employment within the designated terms for the execution of works in the alienation zone, including military servicemen, civil servants (якщо це державні службовці), the public, enterprises, institutions and organisations regardless of their jurisdiction and those who worked not less than 14 calendar days in 1986 in the acting ambulance stations for the decontamination of the population and the deactivation of the equipment or buildings. The list of these stations is drawn up by the Cabinet of Ministers of Ukraine.” “Persons who are considered victims of the Chernobyl nuclear power plant disaster are the following: ... 5) persons who worked for at least 14 days from the time of the accident until 1 July 1986 or for at least three months during 1986-1987 outside the exclusion zone in particularly harmful working conditions (taking into account radioactivity factors), where this work was related to the elimination of the consequences of the Chernobyl nuclear plant disaster and was carried out on the basis of instructions received from the Government. The types of work and territories to be covered are determined by the Cabinet of Ministers of Ukraine.” 68. Relevant provisions of the Resolution no. 501 of 25 August 1992 read as follows: “... persons assisting in eliminating the consequences of the nuclear power plant disaster shall be issued certificates on the basis of one of the following documents: a) a certificate of assignment to the alienation zone; b) a military certificate; c) a certificate of proof of bonus payments for participation in the relief work; d) (excluded on the basis of the Resolution of the Cabinet of Ministers of Ukraine no. 404 of 8.06.1995) a decision of a court establishing direct participation in any work for a certain period related to dealing with the consequences of the nuclear power plant disaster, its consequences in the alienation zone, including the evacuation of persons and property from this zone... The decision to issue or not to issue the relevant certificate shall be adopted within one month from the date of receipt of the necessary documents by the body issuing such a certificate.” 69. Relevant provisions of the Resolution no. 106 of 23 July 1991 read as follows: “... Commentary: The town of Ivankiv to which the applicant was assigned from the place of his employment (Odessa) is not included in the list of localities...” 70. Relevant provisions of the Resolution no. 404 of 8 June 1995 read as follows: “1. (delete paragraph 10 from the Resolution of the Cabinet of Ministers of Ukraine No. 501 of 25 August 1992). 2. Commissions on disputed issues regarding the determination of the status of persons who assisted in dealing with the consequences of the nuclear power plant disaster, created at the Ministry of Chernobyl Affairs ... shall verify the issue of certificates to victims of the Chernobyl nuclear plant disaster on the basis of judicial decisions and shall take action where they find a violation of the procedure for establishing such status.” 71. Relevant provisions of the Resolution of the Plenary Supreme Court of 31 March 1993 read as follows: “2. ... – in accordance with the Law of Ukraine on the Status and Social Security of Victims of the Chernobyl Nuclear Power Plant Disaster and the Resolutions of the Cabinet of Ministers of Ukraine of 25 August 1992 on the Procedure for the Issue of Certificates to Victims of the Chernobyl Nuclear Plant Disaster, adopted in accordance with the Law, certificates may be issued on the basis of a court judgment establishing the person's specific participation in any kind of work for a certain period of time (determined by the legislation) related to eliminating the consequences of the disaster and its consequences in the alienation zone, including the evacuation of persons and property from such zones, and/or the works in the acting ambulance stations for decontamination of the population and deactivation of equipment. All other issues concerning the status of the victims of the Chernobyl nuclear power plant disaster shall be determined on the basis of the relevant documentation of the commissions of the executive bodies of the Kyiv and Zhytomyr Regional Municipal Councils, and disputes shall be settled by the commissions of the Executive Committees of Kyiv and Zhytomyr and of the Ministry of Chernobyl Affairs.”