FIFTH SECTION

CASE OF MAYSTER v. UKRAINE

(Application no. 18951/04)

JUDGMENT

STRASBOURG

9 December 2010

This judgment is final but it may be subject to editorial revision.

In the case of Mayster v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Rait Maruste, President,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 16 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 18951/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Grygoriy Ivanovych Mayster (“the applicant”) on 5 April 2004.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  On 12 May 2009 the Court 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
4.  The applicant is a Ukrainian national who was born in 1948 and lives in Vinnytsia.
A.  Proceedings for reinstatement
5.  On 20 May 1997 the applicant was dismissed from his position of managing director of a private company, V.Ph.
6.  In May 1997 he instituted proceedings in the Leninsky District Court of Vinnytsia (“the Leninsky Court”) against a joint-stock company, V.M., the owner of V.Ph., seeking: reinstatement as director; recovery of salary arrears for the period of involuntary leave between dismissal and reinstatement; recovery of court fees; and compensation for loss of working time.
7.  On 17 April 2001 the Zhytomyr Regional Court (“the Regional Court”), following several hearings in the case, endorsed a friendly settlement between the applicant and V.M., pursuant to which V.M. undertook to reinstate the applicant and pay him the amounts claimed.
8.  V.M. paid the applicant the amounts due to him pursuant to the friendly settlement. On 17 April 2001 it approved his reinstatement but on 18 April 2001 it issued a resolution abolishing the position of the director of V.Ph. on the grounds of a reduction in staff. On 19 April 2001 V.M. made the applicant redundant as of 20 April 2001.
9.  On 14 May 2001, at the applicant’s request, the Regional Court issued a warrant of execution in relation to its ruling of 17 April 2001. The applicant lodged the warrant with the State Bailiffs’ Service (“the bailiffs”).
10.  On 7 August 2001 the bailiffs terminated the enforcement of the Regional Court’s judgment. On 7 September 2001 the Leninsky Court quashed the termination, holding that the ruling in question had only been partially enforced because the applicant had not in fact been allowed to perform his job.
11.  On 9 August 2002, 8 July and 20 August 2003 and 12 August 2005 respectively, the Leninsky Court quashed the bailiffs’ subsequent resolutions terminating the enforcement and ordered them to enforce the ruling of 17 April 2001.
12.  On 17 February and 26 April 2004, the Leninsky Court and the Regional Court respectively issued reminders to the bailiffs that the ruling of 17 April 2001 remained unenforced.
13.  On 14 June 2004 the Regional Court issued a duplicate of the warrant. On 16 July 2004 it reprimanded the bailiffs for their continued non‑enforcement.
14.  According to the applicant, the ruling at issue remains unenforced.
B.  First proceedings against the bailiffs
15.  On 16 July 2002 the applicant instituted proceedings in the Leninsky Court against the bailiffs, complaining of their failure to enforce the ruling of 17 April 2001 and claiming compensation for non-pecuniary damage.
16.  In a judgment of 28 October 2002 the Leninsky Court awarded the applicant damages and ordered the bailiffs to enforce the ruling concerned.
17.  On 18 March 2003 the same court, following the bailiffs’ request for review in the light of newly discovered facts, quashed its above-mentioned judgment.
18.  In two separate rulings of 23 October 2003 it terminated the proceedings, leaving the applicant’s claim for compensation without consideration. The applicant appealed against the first ruling.
19.  On 2 December 2003 the Vinnytsia Regional Court of Appeal (“the Court of Appeal”) upheld the ruling at issue. The applicant appealed in cassation.
20.  On 27 September 2005 the Supreme Court of Ukraine transferred the case to the Higher Administrative Court which, on 25 July 2007, returned the case to the Supreme Court for lack of jurisdiction. According to the Government, on 13 August 2007 the case was transferred to the Lviv Regional Court of Appeal in accordance with new cassation procedures.
21.  On 8 January 2008 the Lviv Regional Court of Appeal, sitting as a court of cassation, quashed the decision of 2 December 2003, stating that the lower court had misapplied the law, and remitted the case to the Court of Appeal.
22.  According to the Government, on 19 March 2008 the Court of Appeal upheld the Leninsky Court’s ruling of 23 October 2003. The applicant did not contest this statement, nor did he inform the Court of any further appeals.
C.  Second proceedings against the bailiffs
23.  On 29 December 2004 the applicant instituted proceedings in the Leninsky Court against the bailiffs, challenging their refusal to institute enforcement proceedings regarding an unspecified judgment in his favour.
24.  On 8 February 2005 the court left his action without consideration noting that the Court of Appeal was competent to deal with it.
25.  On 24February 2005 the Court of Appeal, having found that the applicant’s action was outside its jurisdiction, left it unexamined.
26.  On 23 October 2007 the Lviv Regional Court of Appeal, sitting as a court of cassation, upheld this decision.
D.  Proceedings for recovery of salary arrears
27.  In March 2003 the applicant instituted proceedings in the Zhytomyr Regional Court of Appeal against V.M., seeking recovery of salary arrears for the period from 19 June 2001 to 1 March 2003.
28.  On 7 July 2002 the court rejected his claims as unsubstantiated.
29.  On 4 December 2003 the Supreme Court of Ukraine upheld this judgment.
E.  Criminal proceedings
30.  Since September 2002 the applicant had repeatedly requested that criminal proceedings be instituted against various managers of V.M. who, according to him, were partially responsible for the non-enforcement of the ruling of 17 April 2001.
31.  The criminal proceedings were opened, closed and subsequently resumed several times following the applicant’s complaints to the courts: most recently on 25 March 2009, the District Court quashed a decision by the prosecutor to terminate the investigation. By letter of 17 April 2009 the applicant informed the Court that the investigation was pending before the prosecutors, but that he had not been granted victim status.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
32.  The applicant complained of the excessive length of the first proceedings against the bailiffs. He relied on Article 6 § 1 of the Convention which, so far as relevant, 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 ...”
A.  Admissibility
33.  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
34.  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).
1.  Period to be taken into consideration
35.  The Court notes that the proceedings at issue began on 16 July 2002.
36.  The Government maintained that the proceedings ended on 23 October 2003 with the relevant court ruling.
37.  The Court considers that the applicant’s action was in fact terminated on 19 March 2008, as he challenged one of the court decisions of 23 October 2003 and the proceedings continued until the court of appeal’s decision of 19 March 2008. Thus, the overall duration of the proceedings in question was five years and eight months at three levels of jurisdiction.
38.  The Court considers it, however, appropriate to take into account only the period when the case was actually pending before the courts (see, mutatis mutandis, Golovko v. Ukraine, no. 39161/02, § 49, 1 February 2007). If the period between the adoption of the final judgment and its quashing in the light of newly discovered circumstances is excluded, the length of proceedings was five years and three months.
2.  Reasonableness of the length of the proceedings before the domestic courts
39.  The Court considers that the issue at stake was important for the applicant professionally as well as economically. It does not, however, find any grounds for the domestic courts to have handled the applicant’s case with particular urgency vis-à-vis other cases pending before them as, at least from April 2001, the applicant’s post was abolished and his claims for salary and other sums were moot thereafter.
40.  It further considers that the subject matter of the litigation was not complex and that the applicant did not contribute to the length of the proceedings by his conduct.
41.  The Court observes that the main delay in the proceedings took place during the examination of the applicant’s appeal in cassation. This procedure lasted more than four years and included two reassignments of jurisdiction between courts (see paragraph  20 above).
42.  The Court has already 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).
43.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any facts or arguments 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.
44.  There has accordingly been a breach of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
45.  The applicant further complained that the inordinate length of the proceedings had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention.
46.  The Court notes that this complaint is linked to that examined under Article 6 § 1 of the Convention and must therefore likewise be declared admissible. However, having regard to its finding under Article 6 § 1 of the Convention (see paragraph 44 above), it does not consider it necessary to examine whether, in the present case, there has been a violation of Article 1 of Protocol No. 1 (see Khurava v. Ukraine, no. 8503/05, § 26, 8 April 2010).
III.  OTHER COMPLAINTS
47.  The applicant complained of the non-enforcement of the ruling of 17 April 2001. He also complained of the unfairness and outcome of the first proceedings against the bailiffs and the proceedings for recovery of salary arrears. He further complained about the excessive length of the criminal proceedings and of the lack of access to court in the course of the second proceedings against the bailiffs.
48.  Having carefully examined the applicant’s submissions 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.
49.  It follows that these complaints must be declared manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
50.  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
51.  The applicant claimed 12,038 euros (EUR) in respect of pecuniary damage and EUR 8,025 in respect of non-pecuniary damage.
52.  The Government contested these claims.
53.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. However, it considers that the applicant must have sustained non-pecuniary damage as regards the excessive length of the proceedings in his case. The Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, considers that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage (see Silin v. Ukraine, no. 23926/02, § 46, 13 July 2006).
B.  Costs and expenses
54.  The applicant also claimed EUR 16 for costs and expenses incurred before the Court.
55.  The Government left the matter to the Court’s discretion.
56.  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 are 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 16 under this head.
C.  Default interest
57.  The Court considers it appropriate that 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
1.  Declares the complaint concerning the excessive length of the first proceedings against the bailiffs admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of length of the proceedings;

3.  Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention;

4.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

5.  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 16 (sixteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste
	Deputy Registrar 	President