KIRILENKO v. UKRAINE
Inadmissible
Peer Lorenzen
The applicant, Mr Viktor Ivanovich Kirilenko, is a Ukrainian national who was born in 1939 and lives in Simferopil. The Ukrainian Government (“the Government”) were represented Mr Y. Zaytsev, their Agent, and Mrs I. Shevchuk, Head of the Office of the Government Agent before the European Court of Human Rights. Prior to July 1983 the applicant had been certified as falling within the “second category of invalidity” (друга група інвалідності) on account of a haematological disease. He was receiving a disability pension and earning occasional additional income collecting and selling wild produce. In July 1983 the applicant sustained an injury (concussion and bone fractures) in a car accident caused by Mr K., an employee of the Auto-transport unit of the Simferopil Health Department (“the ATU”; Автогосподарство Симферопольського міського управління охорони здоров’я), who was subsequently sentenced for dangerous driving. In the aftermath of the accident, the applicant was certified as falling within the “first category of invalidity” on account of the injury. However, in 1985 a medical commission restored him into the “second category”, having found that the remaining effects of the injury could not justify the attribution of the “first category”. The applicant, however, ceased collecting wild produce allegedly due to deterioration of his health condition. In January 1984 the applicant instituted civil proceedings against the ATU seeking compensation for his medical expenses and the loss of earnings. On 29 January 1985 the Kyivsky District Court of Simferopil (“the District Court”; Київський районний суд м. Симферополя) allowed the applicant’s claims in part. On 4 March 1985 the Crimean Regional Court (Кримський обласний суд) upheld this judgment and it became final. In 2001, pursuant the introduction of the new cassation procedure, the applicant lodged a cassation appeal against the above rulings, seeking higher payments. On 18 December 2001 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. In November 1990 the applicant instituted civil proceedings against the ATU seeking additional compensations. On 10 January 1992 the District Court rejected this claim as unsubstantiated. On 9 March 1992 the Crimean Regional Court upheld this judgment and it became final. On 16 September 1996 the applicant instituted civil proceedings seeking to obtain additional compensation for the loss of earnings, medical and rehabilitation expenses and other payments from the ATU. In the course of the proceedings, the applicant amended his claims on three occasions. On 6 March 1997 the District Court rejected the applicant’s claims, finding that the applicant’s health condition was not connected to the accident and his disability category was not affected by the injury sustained. On 9 April 1997 the Supreme Court of the Crimea (Верховний суд Автономної Республіки Крим) upheld this judgment and it became final. On 1 August 1997 the Supreme Court of the Crimea quashed the above rulings following a protest (an extraordinary appeal) introduced by its Acting President and remitted the case for a fresh consideration. In particular, the court found that additional investigation was necessary into the specific health damage caused by the accident. In the course of subsequent proceedings, the courts ordered the total of six independent medical expert opinions, some of which contradicted the others, and interviewed six specialists involved in the applicant’s treatment. On 1 July 1998 the District Court rejected the applicant’s claims, finding, based on a medical assessment, that the accident had certain lasting effects on the applicant’s health, but they required no special treatment and were not linked to the damage claimed. On 19 August 1998 the Supreme Court of the Crimea quashed this decision and remitted the case for fresh examination. Subsequently, the court assumed first instance jurisdiction over the case. On 29 June 1999 the Supreme Court of the Crimea rejected the applicant’s claims. It found that part of them had been finally adjudicated in other proceedings brought in 1984 and 1990 (see sections B and C above). As regards the other claims, the court found no causal link between the effects of the accident on the applicant’s health and the expenses claimed. It further dismissed the claim for loss of earnings as unsubstantiated, since the applicant had subsisted on disability pension, while his produce collecting activities could not be regarded as “earnings”. On 27 October 1999 the Supreme Court of Ukraine quashed the judgment of 29 June 1999 and remitted the case for a fresh consideration. It instructed the trial court to assess the degree of work fitness lost by the applicant as a result of the accident, without regard to his prior disability, and to make an additional investigation into the importance of the produce collection as a source of the applicant’s income. On 18 April 2001 the Supreme Court of the Crimea, relying on a new medical expert opinion, decided that the injury resulting from the accident was sufficient to entitle the applicant to a “third category invalidity” (третя группа інвалідності) and that the applicant’s produce collecting activities could qualify as “lost earnings”. Therefore, the court awarded the applicant 1,128 hryvnyas in compensation. The applicant appealed, considering this sum insufficient. On 20 June 2001 the Supreme Court of Ukraine quashed this judgment and remitted the case for a fresh consideration, referring to several contradictions in the opinions of medical experts as to the applicant’s loss of work fitness and challenging the method of calculating the award. On 29 May 2002 the Crimean Court of Appeal (formerly the Supreme Court of the Crimea) rejected the applicant’s claims as unsubstantiated. The applicant appealed in cassation. On 25 July 2002 the court suspended the applicant’s cassation appeal and proposed that he rectify its formal shortcomings. On 2 September 2002 the court returned the appeal as “not lodged” on account of the applicant’s failure to rectify the above shortcomings. The applicant did not challenge this decision. Subsequently the applicant unsuccessfully attempted to re-lodge his appeal in cassation after the expiry of the statutory time-limit.