FIFTH SECTION

CASE OF KLIMENKO v. UKRAINE

(Application no. 15935/06)

JUDGMENT

STRASBOURG

17 February 2011

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

In the case of Klimenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mark Villiger, President,
	Karel Jungwiert,
	Isabelle Berro-Lefèvre, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 25 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 15935/06) 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 Zoya Antonovna Klimenko (“the applicant”), on 6 April 2006.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  On 8 February 2010 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 was born in 1951 and lives in Sevastopol.
A.  Reinstatement proceedings
5.  On 25 March 1998 the applicant was dismissed from her position of Head of Department at the State-owned bank, O. (“the bank”).
6.  On 21 April 1998 she lodged a claim against the bank seeking the reinstatement and compensation for pecuniary and non-pecuniary damage.
7.  On 14 December 1998 Gagarinsky District Court of Sevastopol (“the District Court”) fined the bank following its three consecutive failures to appear before the court.
8.  On 13 January 1999 the District Court partly allowed the applicant’s claim.
9.  On 13 April 1999 the Sevastopol City Court (“the Court of Appeal”, since June 2001, the Sevastopol Court of Appeal) quashed that judgment and sent the case back to the District Court which, on 17 February 2000 dismissed the applicant’s claim. This judgment was upheld by the Court of Appeal on 21 March 2000.
10.  On 20 November 2002 the Supreme Court, dealing with the applicant’s appeal in cassation lodged under the Code of Civil Procedure (as amended by the Law of 21 June 2001), quashed the lower court’s decisions and remitted the case to the District Court which, in a judgment of 24 May 2004 partly granted the applicant’s claim awarding her UAH 114,837 (EUR 17,226) and UAH 50,000 (EUR 7,500) in compensation for pecuniary and non-pecuniary damage respectively.
11.  On 6 August 2004, the Court of Appeal amended that judgment reducing the compensation for non-pecuniary damage to UAH 5,000 (EUR 750). This ruling was executed in February 2005.
12.  On 9 November 2005 the Supreme Court reversed the lower courts’ decisions in respect of the non-pecuniary damages upholding the remainder of their decisions.
13.  On 26 June 2006 the District Court, being bound by the Supreme Court’s decision, ordered the applicant to reimburse the defendant UAH 5,000. On 31 August 2006 the Court of Appeal quashed this decision. The parties did not appeal.
14.  In the course of the proceedings, the applicant modified her claims three times, filed one procedural request and five appeals or supplements to appeals, which all met procedural requirements.
15.  According to the Government, of the 37 hearings scheduled during the periods from 22 April 1998 to 21 March 2000 and from 20 November 2002 to 31 August 2006, seven hearing were adjourned due to the defendant’s failure to attend, three were adjourned due to the applicant’s failure to attend, and one hearing was adjourned due to the both parties’ failure to attend.
B.  Criminal proceedings
16.  On 12 January 1999 the Nakhimovsky District Prosecutor of Sevastopol opened a criminal investigation against the applicant on suspicion of abuse of authority. Until 28 December 2001, the investigation was terminated and reopened three times.
17.  On 31 May 2008 the investigation was reopened for the fourth time. This decision was quashed on 15 July 2008 by the Nakhimovsk District Court of Sevastopol. On 31 July 2008 the Court of Appeal upheld the District Court’s decision. The investigation was pending for about two years and two months overall.
THE LAW
I.  COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
18.  The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the reinstatement proceedings was not reasonable. The Court finds that this complaint falls to be examined solely under Article 6 § 1 of the Convention which reads, in so far as relevant, 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.
A.  Admissibility
20.  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
21.  The Government contested the applicant’s complaint, stating that there had been no significant period of inactivity attributable to the State. They maintained that the case had been complex and that the judicial authorities had acted with due diligence. Moreover, the parties to the domestic proceedings had been responsible for several delays, according to the Government.
22.  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, e.g., Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
23.  The Court will take into account only those periods when the case was actually pending before the courts, thus excluding from calculation those periods between the adoption of the final and binding judgments and their revocation in the course of the extraordinary proceedings (see Markin v. Russia (dec.), no. 59502/00, 16 September 2004, and Pavlyulynets v. Ukraine, no. 70767/01, §§ 41-42, 6 September 2005). Turning to the present case, the Court observes that the period to be taken into consideration started on 21 April 1998. It notes in this respect that the Court of Appeal’s ruling of 21 March 2000 (see paragraph 9 above) constituted a res judicata, and it was only by virtue of the introduction of the new transitional remedy on 21 June 2001 (see paragraph 10 above) that the applicant was able to challenge this ruling. In such circumstances, the applicant’s appeal in cassation to the Supreme Court to challenge the proceedings which had been brought to an end by a final decision must be seen as akin to a request to reopen those proceedings by means of the extraordinary transitional remedy provided for by the Law of 21 June 2001 (see Prystavska v. Ukraine (dec.), no. 21287/02, ECHR 2002‑X). Therefore, the period from 21 March 2000 to 20 November 2002 cannot be taken into account.
24.  After the Supreme Court had remitted the claim to the District Court, the proceedings at three levels of judicial instances continued until 31 August 2006. The period to be taken into consideration thus lasted more than five years and eight months for three levels of jurisdiction.
25.  The Court considers that what was at stake for the applicant required diligence on the part of the State authorities since the proceedings concerned an employment dispute (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230‑D).
26.  Although the domestic courts were required to examine a certain amount of documentary evidence, the issues before them were not of such a nature as to necessitate prolonged consideration of the applicant’s case. Therefore, the Court concludes that the subject matter of the litigation at issue cannot be considered particularly complex.
27.  The Court notes that the complexity of the case and the applicant’s conduct cannot explain the overall length of the proceedings at issue. It considers that a number of delays are attributable to the State. In particular, there was procedural inactivity when the case was pending before the first-instance court for more than three years. Additionally, the consideration of the applicant’s appeal in cassation lasted fourteen months (see paragraph 13 above).
28.  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).
29.  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.
30.  There has accordingly been a breach of Article 6 § 1.
II.  OTHER COMPLAINTS
31.  The applicant further complained under Article 3 of the Convention on account of the excessive length of the reinstatement proceedings. She also alleged a violation of Articles 6 § 1 and 13 of the Convention in respect of the courts’ assessment of evidence and interpretation of the national law and challenged the outcome of those proceedings. Finally, under Articles 6 § 1 and 13 of the Convention she complained that the criminal proceedings brought against her had been excessively long and conducted arbitrarily.
32.  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.
33.  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
34.  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
35.  The applicant claimed 10,252 euros (EUR) in respect of pecuniary and EUR 15,762 in respect of non-pecuniary damage.
36.  The Government contested these claims.
37.  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 her 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.
B.  Costs and expenses
38.  The applicant also claimed EUR 1,796 for the costs and expenses incurred before the domestic courts and EUR 27 for those incurred before the Court.
39.  The Government contested the claim for the costs and expenses incurred before the domestic courts. They left the remainder of the claim to the Court’s discretion.
40.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 27 for the proceedings before the Court.
C.  Default interest
41.  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 concerning the excessive length of the reinstatement proceedings 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 13 of the Convention;

4.  Holds
(a)  that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;
(b)  that the respondent State is to pay the applicant, within three months EUR 27 (twenty seven euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement;
(c)  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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mark Villiger
	Deputy Registrar	President