FIFTH SECTION

CASE OF KOBCHENKO v. UKRAINE

(Application no. 37138/04)

JUDGMENT

STRASBOURG

21 December 2010

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

In the case of Kobchenko 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 30 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 37138/04) 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, Mr Vladimir Vladimirovich Kobchenko (“the applicant”), on 9 October 2004.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  On 21 October 2009 the President of the Fifth Section decided to communicate the complaints concerning the length of the proceedings to the Government. In accordance with Protocol No. 14 of the Convention, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1955 and lives in Dnipropetrovsk, Ukraine.
5.  On 11 December 1998 a local hospital, upon the request of the applicant’s employer, issued a certificate (“the Certificate”) confirming that the applicant had undergone an eight-month medical treatment. The Certificate also specified the applicant’s diagnosis and recommended that his employment should not include night-watchman duties, emotional stresses or irregular working hours.
6.  On 17 December 1998 the applicant was dismissed from his job for health reasons. His claim against the former employer in respect of reinstatement and recovery of salary arrears was rejected by final decision of the Supreme Court on 7 September 2001. The courts established, inter alia, that the Certificate was lawful and did not breach the applicant’s right to private life as the diagnosis had also been reflected in the sick-leave certificates possessed by the employer.
7.  On 22 August 2000 the applicant instituted proceedings against the local hospital in the Leninskyy District Court of Dnipropetrovsk claiming that the Certificate was unlawful in so far as it had been issued in breach of his right to private life and seeking damages.
8.  On 5 May 2001 the court referred the claim to the Amur-Nyzhnyodniprovskyy District Court of Dnipropetrovsk (“the District Court”) in view of its lack of territorial jurisdiction over the case.
9.  By a letter of 20 November 2001 the President of the District Court returned the claim to the applicant noting that the latter had failed to comply with the procedural rules. No formal decision was taken.
10.  On 17 December 2001, following a complaint by the applicant, the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) ordered the President of the District Court to decide on the admissibility of the applicant’s claim in accordance with the procedural requirements.
11.  On 13 February 2002 the District Court declared the applicant’s claim inadmissible.
12.  On 23 April 2002 the Court of Appeal quashed the decision of 13 February 2002 as unfounded and remitted the case to the District Court for fresh consideration of admissibility.
13.  On 27 June 2002 the District Court declared the claim admissible and scheduled a hearing in the case.
14.  On 19 April 2004 the District Court, having held a number of hearings, rejected the applicant’s claim as unsubstantiated. It noted in particular that the lawfulness of the Certificate had already been verified by the courts in the applicant’s proceedings against his employer and the relevant court decisions had become final and binding.
15.  On 14 July 2004 the Court of Appeal rejected the applicant’s appeal as unfounded and upheld the judgment of 19 April 2004.
16.  On 12 August 2004 the applicant lodged a cassation appeal with the Supreme Court. On 11 July 2005 the Supreme Court informed the applicant that its case list was overloaded but some administrative solutions were to be implemented.
17.  On 16 June 2007 the Court of Appeal of the Autonomous Republic of Crimea, acting as a court of cassation, rejected the applicant’s cassation appeal as unfounded.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF LENGTH OF PROCEEDINGS
18.  The applicant complained that the length of the proceedings in his case against the local hospital 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 ...”
19.  The Government contested that argument.
20.  The period to be taken into consideration began on 22 August 2000 and ended on 16 June 2007. It thus lasted six years, nine months and twenty six days for three levels of jurisdiction.
A.  Admissibility
21.  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
22.  The Government submitted that the length of the proceedings in question was reasonable and the domestic judicial authorities were acting with due diligence. In this regard they referred to the number and regularity of hearings held and absence of substantial delays attributable to the national courts. They also maintained that the parties, whose conduct was not imputable to the respondent State, themselves caused certain delays in the proceedings at issue, for example, by failing to attend court hearings, introducing petitions to adjourn the hearings, modifying the claim and lodging appeals against court decisions.
23.  The applicant disagreed that the period in question was reasonable.
24.  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).
25.  Turning to the circumstances of the present case, the Court observes that the subject-matter of the case at issue could not be considered particularly complex and the domestic courts’ decisions were largely based on the findings reached in the applicant’s reinstatement dispute (see, e.g., Dulskiy v. Ukraine, no. 61679/00, § 75, 1 June 2006).
26.  The Court does not accept the Government’s contention that the applicant contributed to the length of the impugned proceedings. The applicant cannot be blamed for lodging appeals and using the avenues available to him under domestic law in order to protect his interests (see, Silin v. Ukraine, no. 23926/02, § 29, 13 July 2006). In the present case, the Court sees no periods of substantial delay for which the applicant was responsible (see, e.g., Svetlana Naumenko v. Ukraine, no. 41984/98, § 82, 9 November 2004).
27.  It is further mentioned that the parties’ conduct do not exonerate the respondent State as it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective (see, e.g., Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006‑V and Nesterova v. Ukraine, no. 10792/04, § 43, 28 May 2009). In the present case, the Court considers that no specific period should be deducted from the overall length as being attributable to the applicant’s procedural behaviour.
28.  The Court points out that the proceedings prior to taking the first instance court’s decision on the merits lasted for about three years and eight months (see paragraphs 7-14 above) and the applicant’s appeal in cassation was pending for more than two years and ten months (see paragraphs 16-17 above), which cannot be considered as reasonable and proper administration of justice.
29.  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, and Efimenko v. Ukraine, no. 55870/00, § 58, 18 July 2006).
30.  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.
31.  There has accordingly been a breach of Article 6 § 1.
II.  OTHER COMPLAINTS
32.  The applicant also complained under Article 6 § 1 of the Convention about unfair outcome of the proceedings against the local hospital and the courts’ incorrect assessment of evidence and interpretation of the law. He further complained under Article 8 of the Convention that the Certificate contained his personal data and was issued in breach of his right to private life.
33.  Having carefully considered the applicant’s submissions in the light of all the material in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
34.  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
35.  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
36.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.
37.  The Government contested the claim.
38.  The Court considers that the applicant must have sustained non-pecuniary damage. However, ruling on an equitable basis, it awards him EUR 600 under that head.
B.  Costs and expenses
39.  The applicant did not submit any claim under this head. The Court therefore makes no award.
C.  Default interest
40.  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
1.  Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  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 28 § 2 of the Convention, EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Rait Maruste	
	Deputy Registrar	President