DEMIDOVA v. UKRAINE - 29843/04 [2010] ECHR 1849 (2 December 2010)

JUDGMENT STRASBOURG 2 December This judgment is final but it may be subject to editorial revision. In the case of Demidova v. Ukraine , The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mark Villiger, President, Isabelle Berro-Lefèvre, Ganna Yudkivska, judges, and Stephen Phillips , Deputy Section Registrar , Having deliberated in private on 9 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 29843/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Zinaida Romanovna Demidova (“the applicant”), on 12 May 2005. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. On 7 September 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE The applicant worked as a prosecutor’s assistant in the Pridniprovsky Transport Prosecutor’s Service, situated in Simferopol. In March 1996 she accepted a transfer in Sevastopol to work as a Transport Prosecutor’s assistant. In March 1997 she was dismissed. Since June 1997 the applicant has been on a pension. A. Proceedings against the prosecutor’s service On 3 July 1997 the applicant instituted proceedings against the Pridniprovsky Transport Prosecutor’s Service in the Gagarinsky District Court of Simferopol (“the Gagarinsky Court”) seeking reinstatement and claiming payment of salary arrears and compensation for non-pecuniary damage. She also claimed payment of her removal expenses and other payments allegedly due to her, and challenged some orders given by her superior. On 10 March 1998 the court found against the applicant. On 16 June 1998 the Sevastopol City Court (since July 2001 – the Sevastopol City Court of Appeal) quashed the judgment and remitted the case for a new consideration to the Gagarinsky Court. On 1 October 1998 the Pridniprovsky Transport Prosecutor’s Service was closed down. Consequently, the Dnipropetrovsk Regional Prosecutor’s Service and the Prosecutor’s Service of the Autonomous Republic of Crimea joined the proceedings as defendants. On 7 May 1999 the court partly allowed the applicant’s claims. On 20 July 1999 the Sevastopol City Court quashed that judgment and remitted the case for a fresh consideration to the Gagarinsky Court. By ruling of 3 November 1999 the Gagarinsky Court ordered that the claims concerning the reinstatement, payments of salary arrears, and compensation for non-pecuniary damage should be considered separately from the remainder of her claims. By judgment adopted the same date the Gagarinsky Court partly allowed the disjoined claims. On 14 December 1999 the Sevastopol City Court upheld the judgement of 3 November 1999. On 31 January 2001, following an objection ( протест ) by the Deputy Prosecutor General, the judgment of 3 November 1999 and the ruling of 14 December 1999 were quashed and the case in that part was remitted for a new consideration to the Gagarinsky Court. On 8 May 2001 it found against the applicant. On 19 June 2001 the Sevastopol City Court upheld that judgment with minor amendments. On 21 December 2001 the Supreme Court dismissed the applicant’s appeal in cassation. Meanwhile, the Gagarinsky Court continued considering the remainder of the applicant’s claims. On 31 December 2003 it dismissed them. On 29 April 2004 the Sevastopol City Court of Appeal upheld the judgment of 31 December 2003 with minor amendments. On 19 August 2004 the Supreme Court upheld the decisions of the lower courts. B. Other proceedings From 1997 to 2000 the applicant instituted a number of proceedings against the Sevastopol City State Administration and the Gagarinsky District Department of the Ministry of Interior of Sevastopol (“the department”). She challenged the refusal of the Sevastopol City State Administration to provide her with a free apartment and sought a ruling obliging the Gagarinsky District Department of the Ministry of Interior in Sevastopol to register her address at the apartment in which she was living. In February 2000 she challenged her dismissal by the Prosecutor’s Service of the Autonomous Republic of Crimea before the Gagarinsky District Court of Sevastopol. The proceedings in the above cases were terminated at the latest in 2000. On 10 November 2007 the applicant instituted proceedings in the Gagarinsky District Court of Sevastopol against the Gagarinsky District State Administration of Sevastopol seeking a ruling obliging the latter to reply to her request. On 21 December 2007 the court declined to consider her claim on account of its procedural shortcomings. The applicant did not appeal against that decision. On 10 December 2008 the applicant lodged an administrative claim with the Gagarinsky District Court of Sevastopol challenging the actions of the Sevastopol City State Administration. The proceedings are still pending. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION The applicant complained that the length of the proceedings instituted in 1997 against the prosecutor’s service had been incompatible with the “reasonable-time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “ In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” The period to be taken into consideration began only on 11 September 1997 when the recognition by Ukraine of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The final judgment in the case was adopted by the Supreme Court on 19 August 2004 . The proceedings thus lasted almost seven years. The case was considered by the domestic courts at three levels of jurisdiction. A. Admissibility The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits The Government contested the applicant’s submissions, stating that there were no significant periods of inactivity attributable to the State. They maintained that the case was complex and that the judicial authorities had acted with due diligence. According to the Government, the parties had been responsible for several delays. The Government, therefore, maintained that the length of proceedings in the applicant’s case was not unreasonable. The applicant disagreed. The Court reiterates that the reasonableness of the length of the 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 applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 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 finds 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. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION The applicant complained of the outcome, unfairness of the other proceedings and that the judges had failed to consider all her claims. She complained about unreasonable length of the other proceedings. She further alleged that the judges had been partial and lacked independence. She also complained that she had not been provided with Russian translations of the Supreme Court’s rulings adopted in her cases. She relied on Articles 6 and 13 of the Convention. The applicant also complained, under Article 6 of the Convention, that the hearings in her cases had not been public. The applicant further complained, under Article 8, that the domestic authorities had failed to provide her and her family with an appropriate apartment. She invoked Article 1 of Protocol No. 1 in respect of the proceedings instituted in 2008. She also invoked Article 2 of Protocol No. 4, referring to the facts of the case. Having carefully examined the applicant’s submissions in the light of all the material in its possession, and insofar 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 this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. 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 applicant claimed UAH 561,684 (about 55,483 euros, EUR) in respect of pecuniary damage. This amount included, inter alia , the applicant’s expenses for postage, copying and translation services. She further clamed UAH 800,000 (about EUR 79,024) in respect of non-pecuniary damage. The Government contested these claims. The Court will consider the applicant’s claim for postage, copying and translation services separately (see paragraph s 37 - 40). The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,200 in respect of non-pecuniary damage. B. Costs and expenses The applicant claimed UAH 278.36 (about EUR 27) for sending her letters to the Court. She further claimed UAH 107 (about EUR 11) for sending her letters to the domestic authorities. She also claimed UAH 380 (about EUR 38) for translation services and UAH 76.80 (about EUR 8) for copying documents. The applicant produced postal receipts for mailing correspondence to this Court amounting to UAH 65.82 (about EUR 7) and 187.80 Russian roubles (about EUR 5) and four receipts evidencing payment of UAH 380 for translation services. The Government agreed that the applicant had incurred some expenses in mailing her letters to the Court and left this matter to the Court’s discretion. They contested the remainder of her claims. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 50 for the proceedings before the Court and rejects the remainder of her claims under this head. C. Default interest The Court considers it appropriate that the default interest 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 Declares the complaint concerning the length of the proceedings instituted in 1997 against the prosecutor’s service admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros) in respect of non-pecuniary damage and EUR 50 (fifty euros) for costs and expenses, plus any tax that may be chargeable to the applicant, 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips Mark Villiger Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII