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FIFTH
SECTION
CASE OF
PAPAZOVA AND OTHERS v. UKRAINE
(Applications
nos. 32849/05, 20796/06,
14347/07 and
40760/07)
JUDGMENT
STRASBOURG
15
March 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Papazova and Others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Ganna
Yudkivska,
André Potocki, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications
(nos. 32849/05, 20796/06, 14347/07 and 40760/07)
against Ukraine lodged
with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by four Ukrainian nationals, Ms Lina Ivanovna Papazova (“the
first applicant”), Mr
Volodymyr Oleksandrovych Korniyenko (“the
second applicant”),
Ms Nina Anatoliyivna Kostenko (“the
third applicant”), and Mr
Andriy Valentynovych Volyk (“the
fourth applicant”), on 19 August 2005, 19
April 2006, 20 March
2007 and 8 August 2007,
respectively.
- The
third applicant was represented before the Court by Mr
V.P. Kononenko, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their
Agent, Mr Y. Zaytsev, succeeded by Ms V. Lutkovska, of the Ministry
of Justice.
- The
notice of the applications was given to the Government by the
decisions of the President of the Fifth Section
of 5 October 2009 and 10 September
2010 in respect of the first and fourth applicants and of 7 February
2011 in respect of the second and third applicants.
THE FACTS
- The
applicants were born in 1953, 1949, 1967 and 1973, respectively. The
first and second applicants live in Dnipropetrovsk and Nikopol,
respectively. The third and fourth applicants live in Kharkiv.
- All
the applicants initiated civil actions against their former employers
seeking reinstatement and recovery of related payments, as well as
compensation of damages, after their allegedly unfair dismissals.
I. proceedings instituted by the first applicant
- On
18 June 2002 the first applicant instituted reinstatement proceedings
(the first set) in the Babushkinskyy Court of Dnipropetrovsk (“the
Babushkinskyy Court”). Following the examination and partial
rejection of her claim by the courts of two levels of jurisdiction
including one remittal, the first applicant appealed in cassation. On
25 August 2010 the Supreme Court opened the cassation proceedings
which, according to the case file information, remain pending.
- Meanwhile,
from 25 March 2002 to 22 November 2007, the courts of three levels of
jurisdiction examined and allowed in part the first applicant’s
separate claim against the same respondent company in respect of the
salary arrears’ recovery (the second set of proceedings).
- Lastly,
on 9 March 2004 the first applicant had lodged an administrative
complaint against the company’s management (the third set of
proceedings) which was dismissed by the Babushkinskyy Court on
12 July 2005 with an explanation that she should bring a civil
claim if she wished so. On 11 December 2007 the first applicant
appealed against that ruling submitting that she had found out about
it only in July 2007. On 3 April 2008 the Dnipropetrovsk Court
of Appeal dismissed her appeal as being out of the time-limit
(calculated from 25 July 2007).
II. proceedings instituted by the SECOND applicant
- On
14 May 1999 the second applicant brought the reinstatement
proceedings in the Nikopol Town Court (“the Nikopol Court”).
- From
5 August 1999 to 15 January 2002 the proceedings were stayed pending
the outcome of two other claims brought by the second applicant in
respect of the allegedly unfair disciplinary actions taken against
him by his former employer.
- On
17 May 2005 the Nikopol Court allowed the second applicant’s
claim in part.
- On
27 October 2005 and 3 September 2007 the Dnipropetrovsk Regional
Court of Appeal and the Supreme Court respectively upheld that
judgment for the most part.
III. proceedings instituted by the THIRD applicant
- On
11 May 2000 the third applicant instituted proceedings against her
former employer in the Kyivskyy District Court of Kharkiv (“the
Kyivskyy Court”) seeking, like the other applicants, her
reinstatement and recovery of certain payments.
- From
30 March 2004 to 10 January 2005 a forensic expert examination was
undertaken at the defendant company’s request.
- On
23 March 2005 the Kyivskyy Court found against the third applicant.
- On
7 July 2005 and 16 November 2006 the Kharkiv Regional Court of Appeal
and the Supreme Court respectively upheld that judgment.
IV. proceedings instituted by the FOURTH applicant
- On
17 August 1999 the fourth applicant brought several civil claims
against his former employer at the Zarichnyy District Court of Sumy
(“the Zarichnyy Court”).
- On
24 November 1999 the Zarichnyy Court ruled against the fourth
applicant.
- On
23 April 2001 the Court of Appeal of Sumy Region (“the Sumy
Court of Appeal”) quashed that judgment and remitted the case
for fresh consideration.
- On
4 March 2002 the Zarichnyy Court rejected the fourth applicant’s
reinstatement claim and severed his other claims.
- On
31 July 2002 and 25 February 2003 the Sumy Court of Appeal and the
Supreme Court, respectively, upheld that judgment.
- On
9 June 2003 the Zarichnyy Court resumed the consideration of the
severed claims.
- By
their decisions of 19 November 2004, 23 February 2005 and 21 June
2007, the courts of three levels of jurisdiction (the Zarichnyy
Court, the Sumy Regional Court of Appeal and the Cherkassy Regional
Court of Appeal sitting as a cassation instance) allowed those claims
in part.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers that, pursuant to Rule 42 § 1 of the Rules of
Court, the applications should be joined, given their common legal
background (see Petrov and Others v. Ukraine, nos. 44654/06,
32525/08 and 35537/08, § 31, 15 November 2011).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF PROCEEDINGS
- The
applicants complained under Article 6 § 1 of the Convention
about the length of the domestic proceedings in their cases (the
first set – as regards the first applicant). The first and the
fourth applicants additionally relied on Article 13 in this regard.
The Court considers that the complaints must be examined solely under
Article 6 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 stating that there had been no
delays in the course of the proceedings that could be attributed to
the State. According to them, the applicants themselves had
contributed to the length of the proceedings, in particular, by
lodging various requests and appeals (all the applicants), initiating
other proceedings the outcome of which had had to be awaited (the
second applicant), accepting a forensic examination requested by the
adversary party (the third applicant), or by submitting numerous
claims eventually requiring severance (the fourth applicant).
- As
to the periods to be taken into consideration, the proceedings
lasted, for three levels of jurisdiction, around eight years in the
first, second and fourth applicants’ cases (with the second
applicant’s case, according to the information in the case
file, having not been completed so far), and six years and six months
in the third applicant’s case.
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- Turning
to the facts of the present case, the Court notes that the
proceedings concerned labour disputes in which no particular
complexity is discernable.
- The
Court further reiterates that special diligence is necessary in
employment disputes, considering that these proceedings were of
undeniable importance to the applicants, and what was at stake for
them, called for an expeditious decision on their claims (see, among
many other authorities, Ruotolo v. Italy, judgment of 27
February 1992, Series A no. 230-D, p. 39, § 17;
Krasnoshapka v. Ukraine, no. 23786/02, §§ 46-47,
30 November 2006).
- The
Court acknowledges that the parties and in particular the applicants
somewhat contributed to the length of the proceedings. The Court
however considers that the applicants’ conduct alone cannot
justify the overall length of the proceedings.
- 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 in respect of the
length of the proceedings.
III. OTHER COMPLAINTS
- All
the applicants also complained under Article 6 of the Convention
about the outcome and unfairness of the domestic proceedings, and the
first applicant additionally complained about the length of their
second and third sets (see paragraphs 7-8 above).
- Having
carefully examined the applicants’ remaining complaints 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 these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. 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
first applicant did not submit a claim for just satisfaction in
accordance with the procedure. Accordingly, the Court considers that
there is no call to award her any sum on that account.
- The
second applicant claimed 185,310.16 Ukrainian
hryvnias (UAH)
as pecuniary damage in respect of reinstatement and lost wages and
60,000 UAН
in respect of non-pecuniary damage.
- The
third applicant claimed EUR 10,000 in respect of
pecuniary and non-pecuniary damage.
- The
fourth applicant claimed EUR 40,497.07 in
respect of pecuniary and EUR 30,000 in respect of non-pecuniary
damage.
- The
Government contested these claims as unsubstantiated and excessive.
- The
Court does not discern any causal link between the violations found
and the pecuniary damages alleged; it therefore rejects these claims.
The Court considers, however, that the applicants
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards the second applicant EUR 3,100, the third applicant
EUR 1,600 and the fourth applicant EUR 2,100 under that head.
B. Costs and expenses
- The
first and second applicants did not claim any
costs and expenses; the Court therefore makes no award.
- The
third applicant claimed EUR 300 as reimbursement of legal services
before the Court, without providing supporting documents of expenses
incurred. The Government objected to this claim, noting that the
applicant had not supported her claim and presumed that she had
represented herself.
- The
fourth applicant claimed EUR 957,75 as
reimbursement of costs and expenses, including legal services
incurred for the representation before the national courts, providing
supporting documents of expenses incurred taking into consideration
the index of inflation in his calculation. The Government objected to
this claim, noting that it had no relation to the case before the
Court.
- Regard
being had to the documents in its possession and to its case law,
the Court rejects these claims for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 50
for the proceedings before the Court to the third applicant.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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. Decides to join the applications;
2. Declares the applicants’ complaints under
Article 6 § 1 of the Convention about the length of the
proceedings (the first set in the first applicant’s case)
admissible and the remaining complaints inadmissible;
3. Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
4. Holds
(a) that
the respondent State is to pay within three months:
(i) to
Mr Korniyenko
EUR 3,100 (three thousand one hundred euros) for
non-pecuniary damage,
(ii) to
Ms Kostenko
EUR 1,600 (one thousand six hundred euros) for
non-pecuniary damage and EUR 50 (fifty euros) for
costs and expenses,
(iii) to
Mr Volyk EUR
2,100 (two thousand one hundred euros) for non-pecuniary damage,
plus
any tax that may be chargeable to the applicants, 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;
5. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 15 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy
Registrar President
