FIFTH SECTION

CASE OF AVRAMENKO v. UKRAINE

(Application no. 24685/07)

JUDGMENT

STRASBOURG

3 March 2011

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

In the case of Avramenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 8 February 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24685/07) 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 Igor Ivanovych Avramenko (“the applicant”), on 6 June 2007.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3.  On 24 November 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
4.  The applicant was born in 1953 and lives in Boryspil, the Kyiv Region.
5.  On 28 May 1998 the applicant lodged with the Inter-Regional Court a claim against his former employer for recovery of salary arrears and salary‑related payments.
6.  On 6 December 1999 the court dismissed the applicant’s claims as lodged out of time. The applicant appealed in cassation.
7.  On 12 January 2000 the Supreme Court quashed the judgment of 6 December 1999 and remitted the case for new consideration, having found that the lower court had incorrectly applied the law.
8.  On 14 November 2000 the Inter-Regional Court allowed in part the applicant’s claims.
9.  On 14 December 2000 the same court, following the applicant’s request, quashed the judgment of 14 November 2000 in view of the newly discovered circumstances.
10.  On 31 May 2001 the court allowed in part the applicant’s claims. He appealed in cassation. On 21 November 2001 the Supreme Court quashed the judgment of 31 May 2001 and remitted the case for new consideration to the Inter-Regional Court.
11.  On 20 December 2001 the Supreme Court sent the applicant’s case for examination to the Obolonskyy District Court of Kyiv.
12.  On 17 May 2002 the latter court allowed the applicant’s claims in part. The applicant appealed against that judgment.
13.  On 19 August 2002 the Kyiv City Court of Appeal quashed the judgment of 17 May 2002 for the first-instance court’s failure to examine all the circumstances of the case and remitted the case for new consideration.
14.  On 28 February 2003 the Obolonskyy District Court of Kyiv suspended the proceedings in view of the applicant’s health problems preventing him from participating in the hearings.
15.  On 7 May 2003 the Kyiv City Court of Appeal, on the appeal lodged by the applicant’s representative, quashed the ruling of 28 February 2003 and sent the case to the first-instance court for further examination.
16.  On 4 August 2003 the Obolonskyy District Court of Kyiv allowed the applicant’s claims. It ordered his reinstatement at his previous post and awarded him 34,472.11 Ukrainian hryvnias (UAH) in salary arrears, salary‑related payments and compensation for non-pecuniary damage.
17.  On 25 November 2003 the Kyiv City Court of Appeal quashed the judgment of 4 August 2003 because of the failure of the first-instance to examine all the circumstances of the case and the parties’ submissions and remitted the case for re-consideration.
18.  On 21 June 2004 the Obolonskyy District Court of Kyiv dismissed the applicant’s claims for reinstatement as lodged out of time, allowed in part his claims for recovery of salary arrears and salary-related payments awarding him UAH 732.08, and rejected the remainder of his claims. The applicant appealed against the judgment.
19.  On 1 October 2004 the Kyiv City Court of Appeal upheld the judgment of 21 June 2004. On 28 October 2004 the applicant appealed in cassation.
20.  On 18 December 2006 the Supreme Court dismissed the applicant’s appeal in cassation and upheld the decisions of 21 June and 1 October 2004.
21.  In the course of the proceedings the applicant supplemented his claims, in particular by lodging a claim for reinstatement, compensation for non-pecuniary damage and indexation of the payments claimed on 12 April and 13 December 2000, 25 January 2001 and 23 March 2002. On 22 April 1999 and 28 February 2002 he unsuccessfully requested withdrawal of the judge from his case. The applicant failed to appear before the court twice, requested the court to adjourn the hearings on two occasions and lodged several requests for obtaining copies of several documents pertinent to the case. The respondent party failed to appear before the courts five times.
THE LAW
I.  THE COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
22.  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 ...”
23.  The Government contested that argument.
24.  The period to be taken into consideration began on 28 May 1998 and ended on 18 December 2006. It thus lasted eight years and six months for three levels of jurisdiction.
A.  Admissibility
25.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
26.  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).
27.  Turning to the facts of the present case, the Court notes that the proceedings concerned the applicant’s claims for reinstatement as an employee and recovery of salary arrears and salary-related payments. The proceedings therefore were of particular importance, requiring the courts to deal with it with special diligence.
28.  The Court further observes that, although the applicant supplemented his claims on several occasions, the claims concerned the same subject-matter, in particular the lawfulness of the applicant’s dismissal and recovery of salary-related payments. Therefore the Court finds that the case was not particularly complex.
29.  In any event, the Court considers that the complexity of the case and the parties’ behaviour alone cannot justify the length of the proceedings of eight and a half years. The Court finds that significant delays were caused by the repeated reconsideration of the case following the first-instance court’s failure to comply with procedural requirements. It further notes that the applicant’s appeal in cassation had been pending examination for two years. The Court therefore concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.
30.  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, Pavlyulynets v. Ukraine, no. 70767/01, § 49-53, 6 September 2005, and Vashchenko v. Ukraine, no. 26864/03, § 50, 26 June 2008).
31.  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.
There has accordingly been a breach of Article 6 § 1.
II.  OTHER COMPLAINTS
32.  The applicant complained under Articles 6 § 1 about the outcome and of unfairness of the proceedings.
33.  In the light of the materials in its possession, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
34.  It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) 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 3,500 euros (EUR) in respect of pecuniary damage and EUR 2,500 in respect of non-pecuniary damage.
37.  The Government contested these claims.
38.  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 2,100 in respect of non‑pecuniary damage.
B.  Costs and expenses
39.  The applicant also claimed EUR 500 for costs and expenses.
40.  The Government left the matter to the Court’s discretion.
41.  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. The Court notes that the applicant has provided relevant supporting documents for the amount of EUR 22. It therefore awards the applicant this amount for costs and expenses
C.  Default interest
42.  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 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, EUR 2,100 (two thousand one hundred euros) in respect of non‑pecuniary damage and EUR 22 (twenty two euros) for costs and expenses, plus any tax that may be chargeable, 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Registrar	President