CASE OF SERDYUK v. UKRAINE
Violation of Art. 6-1
Peer Lorenzen
4. The applicant was born in 1986 and lives in Dzhankoy, Ukraine. 5. On 24 July 1997, when the applicant, a minor at the time, was playing in the yard near home and climbed the concrete wall surrounding the Dzhankoy State Boarding School (the “School”; Джанкойська республіканська загальноосвітня школа-інтернат), a concrete slab from the wall, weighing 1,500 kg, fell on him. The applicant survived, but became permanently and severely disabled. 6. According to the applicant, between 1997 and 1999 his parents lodged numerous unsuccessful requests for investigation into the accident, however, he did not submit any relevant documents predating 7 June 1999. 7. On 7 June 1999 the Dzhankoy Prosecutors' Office refused to initiate criminal proceedings into the accident, which decision was subsequently quashed by the Dzhankoy Court (Джанкойський міський суд). Between June 1999 and May 2001 the criminal proceedings were terminated and resumed on several occasions. The last decision terminating the proceedings was given by the Prosecutors' Office on 15 May 2001. The applicant did not challenge this decision before the domestic courts. 8. According to an expert assessment ordered in the course of the investigation, the wall had been designed in breach of relevant technical standards, which fact, augmented by lack of regular renovations, caused the fall of the slab. The investigation further established that the wall had been built in 1980s without a planning permission or other relevant documents and that the School's staff performed some ad hoc renovation works on it. However, the investigation was terminated on the ground that it was not possible to establish either the constructor or the owner of the wall, since the wall did not feature in either the School's or the city records. These records listed, instead, a non-existent fence of wood and wire-net belonging to the School. Furthermore, a criminal investigation against the constructor would have been time-barred. 9. In October 2000 the applicant instituted civil proceedings in the Zhankoy Court against the School and the Ministry of Education of the Autonomous Republic of the Crimea, seeking compensation for damages caused by his injury. 10. On 25 January 2001 the Court suspended the proceedings at the request of one of the parties in view of the re-opening of the criminal proceedings. In May 2001, after the criminal proceedings were terminated, the court resumed the hearings. 11. Between December 2000 and November 2001 the court scheduled some eleven hearings, three of them being adjourned on account of the absence of a School representative, and one in view of the judge's sickness. 12. On 20 November 2001 the Dzhankoy Court rejected the applicant's claims as being unsubstantiated. In particular, it confirmed that the wall surrounding the School did not belong to it and therefore the defendants bore no liability for its maintenance. 13. On 13 February 2002 the Court of Appeal of the Autonomous Republic of the Crimea (the “Court of Appeal”; Апеляційний суд Автономної Республіки Крим) quashed this judgment and remitted the case for a fresh consideration to the first instance court. The court ordered to take additional measures for establishing the parties responsible for the construction and maintenance of the wall. 14. Between June and December 2002 the City Court scheduled some six hearings, two of them being adjourned on account of the defendant's absence, and one – on account of absence of an expert. 15. On 12 December 2002 the City Court rejected the applicant's complaints, having noted that all its efforts to establish a party responsible for the construction or maintenance had been to no avail. 16. On 26 March 2003 the Court of Appeal quashed the judgment of 12 December 2002 and remitted the case for a fresh consideration on essentially the same grounds as before. 17. Between June and October 2003 the court scheduled four hearings, all adjourned on account of the defendants' conduct (absences and requests for adjournments). 18. On 22 October 2003 the City Court allowed the School's request for leave to appeal in cassation out of time against the ruling of 26 March 2003, having found that the School had not been duly informed of this ruling. 19. On 6 June 2005 the Supreme Court rejected the School's cassation appeal. 20. Since then the proceedings have been pending before the first instance court.