CASE OF PETROV AND OTHERS v. UKRAINE
Violation of Art. 6-1
André Potocki;Ganna Yudkivska;Mark Villiger
4. The applicants were born in 1955, 1953 and 1946 and live in Gorlivka, Rovenky and Kryvyy Rih, respectively. 5. The applicants instituted separate sets of civil proceedings against their employers mainly claiming occupational disability allowances. 6. On 23 September 1999 the first applicant, a former miner, instituted civil proceedings in the Mykytivsky District Court of Gorlivka (“the Mykytivsky Court”) against his former employer, a State-owned mine, seeking recalculation of his occupational disability payment. 7. Between September 1999 and August 2003 the Mykytivsky Court reconsidered the case on three occasions. Its judgments of 2 June and 14 November 2000 and 15 October 2001 were quashed by the Donetsk Regional Court on 24 July 2000, 26 February 2001 and 25 February 2002 for procedural irregularities and legal and factual errors. Accordingly, the case was remitted for fresh examination. 8. On 18 April 2003 the Mykytivsky Court replaced the respondent in the case upon the applicant’s request. In particular, the court ordered another company, the mine’s successor, to stand as a respondent. The court also ordered the local social security fund to take part in the proceedings as a co-respondent. 9. On the same day the Mykytivsky Court delivered a judgment, ordering the fund to make monthly payments in respect of the applicant’s occupational disability. By a separate procedural decision, the applicant’s claims against the other co-respondent were left without consideration as the applicant withdrew them in the course of the court hearing. 10. On 18 December 2003 the Donetsk Regional Court of Appeal quashed the judgment of 18 April 2003 and ordered reconsideration of the case. 11. On 20 April 2006 the Supreme Court quashed the decision of the Court of Appeal, finding that the latter had not complied with the rules of procedure. 12. On 27 July 2006 the Court of Appeal reconsidered the case and adopted a new judgment reducing the payments awarded to the applicant by the first-instance court. 13. On 22 January 2008 the Kyiv Court of Appeal, acting as a court of cassation, rejected the applicant’s appeal and confirmed the judgment of 27 July 2006. 14. The applicant unsuccessfully tried to challenge the courts’ decisions in an extraordinary appeal, which was rejected by the Supreme Court on 18 May 2009. 15. According to the Government, out of fifty-two scheduled hearings, twenty-four were adjourned for various reasons. In particular, the hearings were adjourned twice because of the failure of the applicant to appear, twenty times due to the failure of the respondents or their representatives to appear, and twice because of both parties’ failure to appear. Additionally, two hearings were adjourned as the judge was absent for health and business reasons. On several occasions the courts had to renew, at the applicant’s and the respondent’s request, the term for lodging an appeal which resulted in a delay of about three months. Lastly, due to the expert examination ordered at the applicant’s request, the consideration of the case was delayed for about six months. 16. According the applicant, the hearings were adjourned twenty-three times due to the failure of the respondents or their representative to appear. The applicant also indicated that the case had not been heard between 10 May 2002 and 7 February 2003 as the presiding judge’s mandate had expired. 17. On 23 June 1998 the second applicant, then a miner, instituted civil proceedings in the Rovenky Town Court of Lugansk Region (“the Rovenky Court“) against her employer, a State-owned mine, asking the court to order the mine to issue her a certificate confirming that she had received an occupational injury. 18. In the course of the proceedings the applicant amended her claims on several occasions. In particular, she sought compensation for pecuniary and non-pecuniary damage, resulting from her injury, to be paid by the mine and the local social security fund. 19. Between June 1998 and May 2003 the Rovenky Court reconsidered the case on two occasions. Its judgments of 24 November 1998 and 6 May 2003 were quashed by the Lugansk Regional Court on 14 January 1999 and 29 January 2004, respectively, for procedural irregularities and failure to accurately establish the circumstances. Accordingly, the case was remitted for fresh examination. 20. By the judgment of 24 February 2006, the Rovenky Court rejected the applicant’s claims as unsubstantiated. Following two reconsiderations of the case on appeal, the judgment was eventually confirmed by the Lugansk Regional Court of Appeal on 28 November 2007. 21. On 5 March 2008 the Supreme Court rejected the applicant’s appeal in cassation, finding no fault on the part of the lower courts. 22. According to the Government, out of sixty-eight hearings scheduled in the course of the proceeding, eleven were adjourned because of the failure of the applicant or her representative to appear, eight due to the respondents’ or their representatives’ failure to appear or requests to adjourn hearings, and three because all the parties failed to appear. 23. According to the applicant, she attended all the hearings; her representative failed to appear at only two hearings and was later dismissed by the applicant. 24. On three occasions the courts had to renew, at the applicant’s and respondents’ requests, the term for lodging an appeal which resulted in a delay of about four months. 25. On 26 July 2002 the applicant, then a miner, instituted civil proceedings in the Ternivsky District Court of Kryvyy Rih (“the Ternivsky Court”) against two State-owned companies who were the successors of his former employer, a State-owned mine, and the local social security fund, seeking recalculation of his occupational disability payments and compensation for pecuniary and non-pecuniary damage. 26. In the course of the proceedings the applicant amended his claims on several occasions. The amendments mainly concerned the amounts he claimed. 27. Between July 2002 and November 2007 the Ternivsky Court reconsidered the case on three occasions. Its judgments of 5 July 2004, 6 March 2006 and 23 August 2007 were quashed by the Dnipropetrovsk Regional Court of Appeal on 4 November 2004, 5 October 2006 and 29 November 2007, respectively, for procedural irregularities and legal and factual errors. Accordingly, the case was remitted for fresh examination. 28. The applicant’s appeal in cassation against the decision of 29 November 2007 was rejected by the Supreme Court on 11 March 2008. 29. The case is currently pending before the Ternivsky Court. 30. Out of sixty-three hearings scheduled between 26 July 2002 and 6 December 2010, five were adjourned because of the failure of the applicant or her representative to appear, eighteen were adjourned due to the respondents’ or their representatives’ failure to appear, six times both parties failed to appear. On four occasions the hearings were adjourned for the presiding judge was busy with another case.