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FIFTH
SECTION
CASE OF DEMIDOVA v. UKRAINE
(Application
no. 29843/04)
JUDGMENT
STRASBOURG
2 December
2010
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
