[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF NIKONENKO v. UKRAINE
(Application
no. 14089/03)
JUDGMENT
STRASBOURG
29 May 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nikonenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Volodymyr Butkevych,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14089/03) 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 Olena Volodymyrivna Nikonenko
(“the applicant”), on 10 April 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
7 April 2006 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government. Applying Article 29 § 3
of the Convention, it decided to rule on the admissibility and merits
of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Makiyivka.
- On
1 December 1997 the applicant instituted civil proceedings
in the Tsentralno Misky District Court of Makiyivka
(Центрально-міський
суд м. Макіївка)
against the Makiyivka Municipal Medical Association (Макіївське
міське медичне
територіально-педіатричне
об’єднання),
seeking reinstatement in the position of a speech therapist and
compensation for the loss of income.
- On
21 January 1999 the court found against the applicant. The
applicant appealed in cassation.
- On
11 March 1999 the Donetsk Regional Court (Донецький
обласний суд)
quashed this judgment and remitted the case for a fresh consideration
on the grounds that the first-instance court had failed to examine
all the material circumstances of the case.
- On
18 January 2000 the case-file was destroyed by fire in the
court building. In April 2000 the proceedings were renewed.
- Between
April 2000 and January 2001 the Tsentralno-Misky Court
scheduled some twenty-four hearings. Three of these hearings were
adjourned on account of the defendant’s failure to appear, two
on account of the applicant’s absences and six hearings were
adjourned on account of the absence of witnesses, mostly the
defendant’s employees. On some five occasions the court
adjourned the hearings following the court’s decision to allow
the applicant’s demands to summon witnesses and request
additional documents from the defendant.
- On
12 January 2001 the Tsentralno-Misky Court found against
the applicant. The applicant appealed in cassation.
- On
15 February 2001 the Donetsk Regional Court quashed the
judgment of 12 January 2001 and remitted the case for a
fresh consideration, having found that the first-instance court had
failed to comply with a number of procedural requirements, in
particular, those concerning renewal of the proceedings after the
loss of the case-file. Further, the court held that still not all
relevant circumstances had been explored.
- Between
April and December 2001 the first-instance court scheduled
eleven hearings, some seven of them being adjourned following the
court’s decision to allow the applicant’s demands that
the defendant provides additional documents.
- By
letter of 24 September 2001 the court reprimanded Mrs M.,
the defendant’s chief officer (головний
лікар),
for repetitive failures of its representative to provide the
documents needful for the resolution of the case. In particular, the
court noted that the defendant had been repeatedly providing
incomplete, inaccurate or irrelevant records, causing the court to
adjourn the hearings, and obliged her to ensure the provision of a
number of missing documents. The court further requested the chief
officer to ensure the appearance of the defendant’s employees
summoned by it as witnesses.
- In
October and November 2001 Mrs M. submitted to the court
clarifications concerning various inaccuracies in the records
provided earlier.
- On
5 December 2001 the Tsentralno-Misky Court rejected the
applicant’s claims, having found that she had been dismissed in
accordance with applicable law. On 21 December 2001 the
court provided expanded reasoning for its conclusions, responding to
the applicant’s arguments, which it had not dealt with in its
previous judgments. The applicant appealed.
- On
18 February 2002 the Regional Court upheld the judgment of
5 December 2001. The applicant appealed in cassation.
- On
4 January 2003 the Supreme Court of Ukraine rejected the applicant’s
request for leave to appeal in cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads 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
period to be taken into consideration began on 1 December 1997
and ended on 4 January 2003. It thus lasted five years and
one month for 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 submitted that the length of the proceedings in the
applicant’s case was not unreasonable. They maintained that
primary factors delaying the final resolution of the case were the
fire in the court building, which was a force majeure, and the
applicant’s own conduct, in particular, her repetitive demands
to summon witnesses and provide additional documents.
- The
applicant disagreed. She maintained that the proceedings concerning
her reinstatement were of paramount importance to her, in particular,
since she was a single mother with no other sources of income. She
further submitted that the fire happened on account of the
authorities’ negligence and that her demands for documents were
triggered by the defendant’s repetitive failures to provide
what was necessary for resolution of her claims.
- 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 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 reiterates that special diligence is
necessary in employment disputes (Ruotolo v. Italy, judgment
of 27 February 1992, Series A no. 230-D, p. 39, § 17).
- Turning
to the facts of the present case, the Court does not find that loss
of the applicant’s case-file by fire can be attributed to the
Government in absence of any evidence that it had been caused by
negligence of the court personnel. It further notes that the trial
court regularly scheduled hearings in the applicant’s case.
- On
the other hand, the Court observes that significant delays in the
proceedings were caused by repetitive remittals of the case for a
fresh consideration on account of the failures of the trial court to
explore all relevant circumstances and to comply with the rules of
procedure. As regards adjournments of hearings, the Court notes that,
although on a number of occasions it was the applicant who requested
them demanding additional documents or presence of witnesses, the
final discretion as to whether to grant such requests always remained
with the judicial authorities, who bear ultimate responsibility for
management of their proceedings so that they are expeditious and
effective (see e.g. Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 183, ECHR 2006-...). Additionally,
regard being had to the reasons adduced by the appellate court for
remittals of the case for a fresh consideration and the
correspondence between the Tsentralno-Misky Court and the defendant’s
chief officer (see paragraphs 13-14 above), it appears that before
September 2001 little had been done to ensure submission of
comprehensive information by the defendant, who was a State entity,
as well as employer of most of the witnesses.
- 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 e.g. Karnaushenko v. Ukraine,
no. 23853/02, §§ 59, 30 November 2006; and Moroz
and Others v. Ukraine, no. 36545/02, § 60, 21
December 2006 and Golovko v. Ukraine, no. 39161/02,
§ 63, 1 February 2007).
- Having
examined all the material submitted to it and having regard to its
case-law on the subject, the Court considers that, on balance, 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 COMPLAINTS
- The
applicant further complained under Article 6 § 1
of the Convention that the proceedings in her case were unfair,
particularly, as the domestic judicial authorities erred in
assessment of facts and application of the law.
- 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. Particularly,
the Court observes that the applicant enjoyed the right to
adversarial proceedings. Within the framework of the proceedings she
was able to introduce all necessary arguments defending her
interests, and the judicial authorities gave them due consideration.
- 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 12,000 hryvnyas (UAH) in compensation for the loss
of income allegedly sustained in connection with the delay in the
proceedings by way of compensation for pecuniary damage. She further
claimed 88,000 hryvnyas in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards her EUR 800 under that head.
B. Costs and expenses
- The applicant did not submit any separate claim under
this head; the Court therefore makes no award in this respect.
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 excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. 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 800
(eight hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the national
currency 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 amount 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 29 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
