[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KOLESNIKOVA v. UKRAINE
(Application
no. 7536/05)
JUDGMENT
STRASBOURG
3 March
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kolesnikova 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
- The
case originated in an application
(no. 7536/05) 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 Valentina Yegorovna Kolesnikova (“the applicant”),
on 12 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
11 January 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
- The
applicant was born in 1958 and lives in Slovyansk.
- In
December 1994 she was injured while working at the State-owned
company Donetska Zaliznytsia (“the company”, Донецька
залізниця)
and became partially disabled. Shortly afterwards the company
voluntarily accepted full liability for the applicant’s
disability.
A. Proceedings instituted in 1995
- In
December 1995 the applicant lodged a claim against Ch., the head
physician of a hospital where she had been treated after having
sustained the injury, seeking damages for allegedly inadequate
medical treatment. In a judgment of 24 April 1996 the Slovyansk City
Court (“the City Court”) rejected her claim. On 6 June
1996 and 28 March 2003, the Donetsk Regional Court (since June
2001 the Donetsk Regional Court of Appeal) and the Supreme Court
respectively, upheld this judgment.
B. Proceedings instituted in 1996
- On
6 December 1996 the applicant lodged four separate claims with the
City Court against the company seeking respectively: compensation for
salary arrears, medical expenses and issuance or compensation of cost
of sanatorium voucher; annulment of a reprimand; payment of health
allowances; and placement to a certain post. On 9 December 1996 the
court requested her to rectify shortcomings in her fourth claim. On
17 April 1997 she lodged a fifth claim seeking redeployment to a
certain post at the company.
- On
5 May 1997 the applicant was dismissed for repeated failure to
perform her duties.
- On
27 May 1997 she lodged a sixth claim seeking her reemployment and
payment of damages.
- On
3 June 1997 the City Court returned the fourth claim to the
applicant. On 17 June 1997 it left the second claim unexamined, the
applicant having failed to appear before it. On an unspecified date
in July 1997 the court held the first hearing on the applicant’s
claims. There is no indication whether the claims were joined, and if
so when.
- On
15 October 1997 the Donetsk Regional Court quashed the decision
of 17 June 1997. In a judgment of 11 June 2003, the City Court
rejected the applicant’s claims, including the overall claim
for UAH 183,183 (EUR 29,309 euros, EUR)
in damages. On 3 February and 17 December 2004 the Donetsk
Regional Court of Appeal (“the Court of Appeal”) and the
Supreme Court respectively, upheld this judgment. On 11 January
2007 the Supreme Court rejected the applicant’s request for a
re-hearing of her case by way of extraordinary review.
- According
to the Government, between 11 September 1997 and 17 December
2004 the applicant modified her claims on four occasions, filed four
procedural requests and three appeals, always complying with the
procedural requirements. Of the seventy three hearings scheduled
during the same period of time, eleven were adjourned due to the
defendant’s or witness’s failure to attend, ten were
adjourned at the applicant’s request, seven were adjourned due
to the applicant’s failure to attend, three were adjourned due
to the both parties’ failure to attend, three were adjourned at
the both parties’ request, two were adjourned at the
defendant’s request, and four were adjourned for reasons beyond
parties’ control.
C. Proceedings instituted in 2004
- On
16 March 2004 the applicant brought an action against the company
seeking recovery of her work book (трудова
книжка)
with rectified records, work-related arrears and non-pecuniary
damages. In a judgment of 26 November 2004 the City Court
dismissed her action. On 28 March 2005 the Court of Appeal
upheld this judgment. On 21 May
2007 the Supreme Court, according to the Judicial System Act (as
amended on 22 February 2007), transmitted the applicant’s
case to the Kyiv Court of Appeal, which on 20 December 2007, sitting
as a court of cassation, upheld the lower court’s decisions.
According to the applicant, she learned about this decision on 9
February 2009 and appealed in cassation again. On 14 April 2009
the Supreme Court left her appeal unexamined, the case having been
already reviewed.
D. Criminal and disciplinary proceedings
- In
1995 the applicant instituted criminal proceedings against G., the
company’s employee who allegedly was responsible for her injury
in 1994. In 1998 G. was charged with work-safety negligence and
amnestied. The applicant unsuccessfully pursued further prosecution
of G.
- In
August-October 1995 the City Court dealt with Ch.’s criminal
claim for defamation brought against the applicant.
- According
to the applicant, on 13 September 1995 B., a manager of the
company, pushed her out of his office injuring her. She
stated further that on 15 April 1997 an investigator of the
Donetsk Railway Prosecutor’s Office, R., beat her up when
escorting her in order to carry out investigative actions.
During 1995-2003 the applicant succeeded in having criminal
proceedings instituted in respect of the investigator and manager;
the proceedings were terminated after investigation.
- In
1997-2003 the applicant unsuccessfully sought to bring criminal
proceedings against Ch. for alleged violation of safety rules.
- In
2000-2008 she unsuccessfully sought to bring criminal and
disciplinary proceedings against certain managers of the company for
alleged abuse of authority. During the above-mentioned periods of
time, she unsuccessfully sought to bring disciplinary proceedings
against certain employees and managers of the company.
- The
applicant did not join the criminal proceedings as a civil claimant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings instituted in
1996 had been incompatible with the “reasonable time”
requirement, laid down in 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 ...”
- The
Government contested that argument.
- The
Court considers that the period to be taken into consideration began
on 11 September 1997, when the Convention entered into force with
regard to Ukraine. 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 period in question ended on 17
December 2004. It thus lasted seven years and three months for three
levels of jurisdiction.
A. Admissibility
- 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
- The
Government maintained that the proceedings had been complex in that
the applicant’s action consisted of many claims, one of which
required complex calculations. In their view, the
parties to the proceedings had been responsible for several delays
and the applicant herself by filing procedural requests and appeals.
There had been no significant periods of inactivity attributable to
the domestic courts, according to the Government.
- The
applicant disagreed.
- 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).
- The
Court notes that what was at stake for the applicant required
diligence on the part of the State authorities since the proceedings
concerned her employment dispute (see Ruotolo
v. Italy, 27 February 1992, § 17,
Series A no. 230 D).
- It
further notes that the domestic courts examined the applicant’s
claims jointly. Although, in the course of hearings, they were
required to ascertain some documentary evidence, the issues before
them, quantitatively and qualitatively, did not necessitate prolonged
consideration of the case.
- With
regard to the applicant’s conduct, the Court accepts that there
were certain delays attributable to her (see paragraph 15
above). However, in respect of her procedural requests and appeals,
the Court notes that the applicant merely exercised her procedural
rights and cannot be blamed for using the avenues available to her
under the domestic law in order to protect her interests (see,
Silin v. Ukraine, no. 23926/02, § 29, 13 July 2006).
- As
regards the Government’s contention that its tribunals were not
responsible for the delays caused by the defendant, the Court recalls
that it is for the domestic authorities to constrain the abusive and
dilatory conduct of a party to civil proceedings. The defendant’s
failure to attend court hearings significantly protracted the
proceedings at issue (see paragraph 20 above). Although the
courts had at their disposal ample machinery to ensure the
defendant’s presence in the courtroom, there is no indication
that they took any measures to sanction the defendant’s failure
to appear or to consider the case in its absence (see, mutatis
mutandis, Smirnova v. Ukraine, no. 36655/02, §§
53 and 69, 8 November 2005). Therefore, this cannot be considered as
exonerating the respondent State.
- The Court notes that certain
complexity of the case and the conduct of the parties cannot explain
the overall length of the proceedings at issue. It finds that the
main delay in the proceedings took place during the examination at
the first-instance court that lasted, taking into consideration the
Court’s competence ratione temporis,
five years and nine months.
- 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 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 of the
Convention.
II. OTHER COMPLAINTS
- The
applicant further complained under Article 2 § 1 of the
Convention on account of the outcome of the proceedings instituted in
1996. Under the same heading, she alleged a violation on account of
the events that allegedly took place on 13 September 1995 and 15
April 1997. Additionally, she claimed a violation of Articles 5 §
1 and 17 of the Convention as regards the latter event. Relying on
Article 3 of the Convention, she also complained on account of the
criminal prosecution brought against her. Under
Article 4 § 1 of the Convention, she
complained that she
was unlawfully dismissed from work. She further 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 challenging the outcome and
reasonableness of length of all the proceedings.
Additionally, relying on Article 6 § 1 of the Convention,
she complained of the Supreme Court’s
refusal to examine her second appeal in cassation.
The applicant further complained,
referring to Articles 14 and 17 of the Convention, that no
disciplinary proceedings were instituted against unspecified persons.
Lastly, relying on Article 14 of the Convention, she complained on
account of not being redeployed to another post
in 1996.
- 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.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article
35 §§ 3 (a) 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 1,607,904 (EUR 144,711)
in respect of pecuniary and UAH 4,383,300 (EUR 394,497) in respect of
non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged and, therefore, rejects this claim.
On the other hand, it considers that the applicant must have
sustained non-pecuniary damage which cannot be sufficiently
compensated by the sole finding of a violation. Making its assessment
on an equitable basis and having regard to the particular
circumstances of the case, the Court awards the applicant EUR 1,200
under that head.
B. Costs and expenses
- The
applicant also claimed various sums for the costs and expenses
incurred before the domestic courts and the Court.
- The
Government admitted that she incurred UAH 633 (about EUR 57) in
postal expenses before the Court.
- Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the sum of EUR 60
covering costs and expenses under all heads.
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 excessive
length of the proceedings instituted in 1996 admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant within three months, EUR
1,200 (one thousand two hundred euros) in respect of non-pecuniary
damage and EUR 60 (sixty euros) in respect of 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 on 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 3 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
