PAPAZOVA AND OTHERS v. UKRAINE - 32849/05 [2012] ECHR 450 (15 March 2012)

JUDGMENT STRASBOURG March 2012 This judgment is final but it may be subject to editorial revision. In the case of Papazova and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mark Villiger, President, Ganna Yudkivska, André Potocki, judges, and Stephen Phillips , Deputy Section Registrar , Having deliberated in private on 21 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in four applications (nos. 32849/05, 20796/06, 14347/07 and 40760/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Ms Lina Ivanovna Papazova (“the first applicant”) , Mr Volodymyr Oleksandrovych Korniyenko (“the second applicant”) , Ms Nina Anatoliyivna Kostenko (“the third applicant”) , and Mr Andriy Valentynovych Volyk (“the fourth applicant”) , on 19 August 2005, April 2006 , 20 March and 8 August 2007, respectively. The third applicant was represented before the Court by Mr V. P. Kononenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, succeeded by Ms V. Lutkovska, of the Ministry of Justice. The notice of the applications was given to the Government by the decisions of the President of the Fifth Section of 5 October 2009 and 10 September 2010 in respect of the first and fourth applicants and of 7 February 2011 in respect of the second and third applicants . THE FACTS The applicants were born in 1953, 1949, 1967 and 1973, respectively. The first and second applicants live in Dnipropetrovsk and Nikopol, respectively. The third and fourth applicants live in Kharkiv. All the applicants initiated civil actions against their former employers seeking reinstatement and recovery of related payments, as well as compensation of damages, after their allegedly unfair dismissals. I. proceedings instituted by the first applicant On 18 June 2002 the first applicant instituted reinstatement proceedings (the first set) in the Babushkinskyy Court of Dnipropetrovsk (“the Babushkinskyy Court”). Following the examination and partial rejection of her claim by the courts of two levels of jurisdiction including one remittal, the first applicant appealed in cassation. On 25 August 2010 the Supreme Court opened the cassation proceedings which, according to the case file information, remain pending. Meanwhile, from 25 March 2002 to 22 November 2007, the courts of three levels of jurisdiction examined and allowed in part the first applicant’s separate claim against the same respondent company in respect of the salary arrears’ recovery (the second set of proceedings). Lastly, on 9 March 2004 the first applicant had lodged an administrative complaint against the company’s management (the third set of proceedings) which was dismissed by the Babushkinskyy Court on 12 July 2005 with an explanation that she should bring a civil claim if she wished so. On 11 December 2007 the first applicant appealed against that ruling submitting that she had found out about it only in July 2007. On 3 April 2008 the Dnipropetrovsk Court of Appeal dismissed her appeal as being out of the time-limit (calculated from 25 July 2007). II. proceedings instituted by the SECOND applicant On 14 May 1999 the second applicant brought the reinstatement proceedings in the Nikopol Town Court (“the Nikopol Court”). From 5 August 1999 to 15 January 2002 the proceedings were stayed pending the outcome of two other claims brought by the second applicant in respect of the allegedly unfair disciplinary actions taken against him by his former employer. On 17 May 2005 the Nikopol Court allowed the second applicant’s claim in part. On 27 October 2005 and 3 September 2007 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court respectively upheld that judgment for the most part. III. proceedings instituted by the THIRD applicant On 11 May 2000 the third applicant instituted proceedings against her former employer in the Kyivskyy District Court of Kharkiv (“the Kyivskyy Court”) seeking, like the other applicants, her reinstatement and recovery of certain payments. From 30 March 2004 to 10 January 2005 a forensic expert examination was undertaken at the defendant company’s request. On 23 March 2005 the Kyivskyy Court found against the third applicant. On 7 July 2005 and 16 November 2006 the Kharkiv Regional Court of Appeal and the Supreme Court respectively upheld that judgment. IV. proceedings instituted by the FOURTH applicant On 17 August 1999 the fourth applicant brought several civil claims against his former employer at the Zarichnyy District Court of Sumy (“the Zarichnyy Court”). On 24 November 1999 the Zarichnyy Court ruled against the fourth applicant. On 23 April 2001 the Court of Appeal of Sumy Region (“the Sumy Court of Appeal”) quashed that judgment and remitted the case for fresh consideration. On 4 March 2002 the Zarichnyy Court rejected the fourth applicant’s reinstatement claim and severed his other claims. On 31 July 2002 and 25 February 2003 the Sumy Court of Appeal and the Supreme Court, respectively, upheld that judgment. On 9 June 2003 the Zarichnyy Court resumed the consideration of the severed claims. By their decisions of 19 November 2004, 23 February 2005 and 21 June 2007, the courts of three levels of jurisdiction (the Zarichnyy Court, the Sumy Regional Court of Appeal and the Cherkassy Regional Court of Appeal sitting as a cassation instance) allowed those claims in part. THE LAW I. JOINDER OF THE APPLICATIONS The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common legal background (see Petrov and Others v. Ukraine , nos. 44654/06, 32525/08 and 35537/08, § 31, 15 November 2011). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF PROCEEDINGS The applicants complained under Article 6 § 1 of the Convention about the length of the domestic proceedings in their cases (the first set – as regards the first applicant). The first and the fourth applicants additionally relied on Article 13 in this regard. The Court considers that the complaints must be examined solely under Article 6 of the Convention, which reads, in so far as relevant, as follows: “ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” The Government contested that argument stating that there had been no delays in the course of the proceedings that could be attributed to the State. According to them, the applicants themselves had contributed to the length of the proceedings, in particular, by lodging various requests and appeals (all the applicants), initiating other proceedings the outcome of which had had to be awaited (the second applicant), accepting a forensic examination requested by the adversary party (the third applicant), or by submitting numerous claims eventually requiring severance (the fourth applicant). As to the periods to be taken into consideration, the proceedings lasted, for three levels of jurisdiction, around eight years in the first, second and fourth applicants’ cases (with the second applicant’s case, according to the information in the case file, having not been completed so far), and six years and six months in the third applicant’s case. A. Admissibility The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). Turning to the facts of the present case, the Court notes that the proceedings concerned labour disputes in which no particular complexity is discernable. The Court further reiterates that special diligence is necessary in employment disputes, considering that these proceedings were of undeniable importance to the applicants, and what was at stake for them, called for an expeditious decision on their claims (see, among many other authorities, Ruotolo v. Italy , judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17; Krasnoshapka v. Ukraine , no. 23786/02, §§ 46-47, 30 November 2006). The Court acknowledges that the parties and in particular the applicants somewhat contributed to the length of the proceedings. The Court however considers that the applicants’ conduct alone cannot justify the overall length of the proceedings. 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 Frydlender , cited above). 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 in respect of the length of the proceedings. III. OTHER COMPLAINTS All the applicants also complained under Article 6 of the Convention about the outcome and unfairness of the domestic proceedings, and the first applicant additionally complained about the length of their second and third sets (see paragraphs 7-8 above). Having carefully examined the applicants’ remaining complaints in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. 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 first applicant did not submit a claim for just satisfaction in accordance with the procedure. Accordingly, the Court considers that there is no call to award her any sum on that account. The second applicant claimed 185,310.16 Ukrainian hryvnias (UAH) as pecuniary damage in respect of reinstatement and lost wages and 60,000 UA Н in respect of non-pecuniary damage. The third applicant claimed EUR 10,000 in respect of pecuniary and non-pecuniary damage. The fourth applicant claimed EUR 40,497.07 in respect of pecuniary and EUR 30,000 in respect of non-pecuniary damage. The Government contested these claims as unsubstantiated and excessive. The Court does not discern any causal link between the violations found and the pecuniary damages alleged; it therefore rejects these claims. The Court considers, however, that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the second applicant EUR 3,100, the third applicant EUR 1,600 and the fourth applicant EUR 2,100 under that head. B. Costs and expenses The first and second applicants did not claim any costs and expenses; the Court therefore makes no award. The third applicant claimed EUR 300 as reimbursement of legal services before the Court, without providing supporting documents of expenses incurred. The Government objected to this claim, noting that the applicant had not supported her claim and presumed that she had represented herself. The fourth applicant claimed EUR 957,75 as reimbursement of costs and expenses, including legal services incurred for the representation before the national courts, providing supporting documents of expenses incurred taking into consideration the index of inflation in his calculation. The Government objected to this claim, noting that it had no relation to the case before the Court. Regard being had to the documents in its possession and to its case law, the Court rejects these claims for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 50 for the proceedings before the Court to the third applicant. C. Default interest The Court considers it appropriate that the default interest rate 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 UNANIMOUSLY 1. Decides to join the applications; 2. Declares the applicants’ complaints under Article 6 § 1 of the Convention about the length of the proceedings (the first set in the first applicant’s case) admissible and the remaining complaints inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings; 4. Holds (a) that the respondent State is to pay within three months: (i) to Mr Korniyenko EUR 3,100 (three thousand one hundred euros) for non-pecuniary damage, (ii) to Ms Kostenko EUR 1,600 (one thousand six hundred euros) for non-pecuniary damage and EUR 50 (fifty euros) for costs and expenses, (iii) to Mr Volyk EUR 2,100 (two thousand one hundred euros) for non-pecuniary damage, plus any tax that may be chargeable to the applicants, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 15 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips Mark Villiger Deputy Registrar President . Around EUR 16,180. . Around EUR , . BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII