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FIFTH
SECTION
CASE OF KOZLOV v. UKRAINE
(Application
no. 11084/03)
JUDGMENT
STRASBOURG
12 July 2007
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention.
In the case of Kozlov v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 19 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11084/03) 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 Sergey Gennadyevich Kozlov (“the
applicant”), on 3 March 2003.
- The Ukrainian Government (“the Government”)
were represented by Mr Y. Zaytsev, their Agent, and
Mrs I. Shevchuk, Head of the Office of the Government Agent
before the European Court of Human Rights.
- On
11 May 2006 the Court
decided to communicate the complaint concerning the length of the
proceedings to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Sevastopil.
- At
the material time the applicant worked as the supervisor of the
technical division (начальник
технического
отдела) at the Navy
Communication Devices Repair Plant (“the Company,” “771
Ремонтный завод
средств связи
Черноморского
флота” военной
части №31060)
belonging to the Government of the Russian Federation and located in
Sevastopil, Ukraine.
A. First set of proceedings
- On
16 January 1992 the applicant was dismissed for his failure
to meet the requirements of his post.
- On
24 January 1992 he instituted civil proceedings in the
Nakhimovskyy District Court of Sevastopil (“the District
Court”; Нахімовський
районний суд
м. Севастополя),
seeking his reinstatement and compensation for the loss of income
(“the reinstatement proceedings”).
- On
27 April 1992 the applicant instituted additional civil
proceedings in the same court, alleging that the Company had been
miscalculating his monthly salary between October 1991 and
January 1992 (“the salary proceedings”).
- On
29 July 1992 the Crimean Regional Court (Кримський
обласний суд)
gave the final judgment in the reinstatement proceedings
ordering the applicant's reinstatement and awarding him 3,134.20
karbovantsi
in compensation.
- On
7 April 1993, the Crimean Regional Court gave the final
judgment in the salary proceedings finding for the applicant and
recalculating the salary due to him for the months of October 1991 –
January 1992.
- In
view of the salary recalculation, the reinstatement proceedings were
subsequently re-opened. On 10 June 1993 the compensation
due to the applicant was increased to 10,960.52 karbovantsi.
On 21 July 1993 the Crimean Regional Court upheld this
judgment and it became final.
- On
28 April 1999 the Supreme Court quashed the decisions of
10 June and 21 July 1993 and remitted the case for a
fresh consideration, following a protest, instituted by the Deputy
President of the Supreme Court upon the request of the applicant, who
sought higher compensation for the loss of income.
- On
20 April 2001 the District Court rejected the applicant's
claims for higher compensation.
- On
5 June 2001 the Sevastopil City Court (“the City
Court”; Севастопольський
міський суд)
quashed this judgment on appeal in cassation and remitted the
case for a fresh consideration.
- On
21 January 2002 the District Court found that the proper
amount of compensation due to the applicant was
4,922.40 karbovantsi,
but ordered not to pay this sum to the applicant as the Company had
already paid the award fixed by the quashed judgment of 10 June 1993.
- On
16 April 2002 the City Court quashed this judgment on
appeal and remitted the case for a fresh consideration. The applicant
appealed in cassation against this ruling, contending that the City
Court should have decided the merits instead of remitting the case
for a fresh consideration.
- On
4 September 2002 the Supreme Court rejected the applicant's
request for leave to appeal in cassation against the ruling of
16 April 2002.
- On
13 March 2003 the applicant complained to the President of
the District Court about lack of action in his case.
- On
15 April 2003 the District Court notified the applicant
that his case had been mistakenly transferred to the finished cases
archive.
- On
28 May 2004 the District Court ruled against the applicant.
- On
11 November 2004 the City Court quashed this judgment and
awarded the applicant 8.21 Ukrainian hryvnyas (UAH).
- On
26 June 2006 the Supreme Court rejected the applicant's
request for leave to appeal in cassation.
B. Second set of proceedings
- In
October-December 1995 the Company ordered its employees to work
part-time in view of the Company's financial hardships.
- In
January 1996 the applicant instituted civil proceedings
challenging the legitimacy of this order and seeking compensation for
his “involuntary absence” from work.
- On
20 February 1997 the Nakhimovskyy District Court rejected
the applicant's claims.
- On
18 March 1997 the Sevastopil City Court upheld this
judgment on appeal in cassation and it became final.
- On
17 July 1998 Presidium of the City Court quashed the
decisions of 20 February and 18 March 1997 and
remitted the case for a fresh consideration, following a protest of
the Deputy President of the Supreme Court.
- On
2 April 1999 the District Court allowed the applicant's
claims and awarded him UAH 297.
- On
11 May 1999 the City Court upheld this decision on appeal
in cassation and it became final.
- On
19 January 2000 the Supreme Court quashed the decisions of
2 April and 11 May 1999 and remitted the case for a
fresh consideration, following a protest, instituted by its Deputy
President.
- On
2 March 2004 the District Court
partly allowed the applicant's claims and awarded him UAH 194.62.
The Company appealed.
- On
20 June 2004 the City Court returned the case-file to the
District Court, having instructed it to finalize the trial record and
to order an immediate payment of a certain amount of the award.
- On
20 July 2004 the District Court ordered the immediate
payment of UAH 68.63.
Both parties appealed.
- On
16 December 2004 the City Court quashed the judgments of
2 March 2004 and 20 July 2004 and rejected the
applicant's claims as unsubstantiated. The applicant appealed in
cassation.
- On
28 December 2005 the Supreme Court rejected the applicant's
request for leave to appeal in cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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...”
- The
Government argued that the first set of proceedings did not exceed a
reasonable time. They submitted no observations as regards the second
set.
- The
two sets of proceedings started in 1992 and 1996 respectively.
However, the period to be taken into consideration began only on
11 September 1997, when the recognition by Ukraine of the
right of individual petition took effect. Nevertheless, in assessing
the reasonableness of the time that elapsed after that date, account
must be taken of the state of proceedings at that time. The periods
in question ended on 26 June 2006 in respect of the first
set of proceedings and on 28 December 2005 in respect of
the second set.
- The
Court further finds that the period between 11 September 1997
and 28 April 1999 in respect of the first set of
proceedings and the periods between 11 September 1997 and
17 July 1998 and between 11 May 1999 and
19 January 2000 in respect of the second set cannot be
taken into account, as during these periods there existed final
judgments in the applicant's cases and no court or enforcement
proceedings were pending (see e.g. Rokhlina v.
Russia, no. 54071/00, § 82, 7 April 2005).
40. The
proceedings thus lasted seven years and two months and six years and
nine months respectively 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 of the Convention. It further
notes that it is not inadmissible on any other grounds. It 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 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).
- 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 e.g., Frydlender, cited above; Svetlana
Naumenko v. Ukraine, no. 41984/98,
9 November 2004 and Golovko v. Ukraine,
no. 39161/02, 1 February 2007).
- 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 two sets of proceedings was
excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Additionally, the applicant complained that the two
sets of proceedings were generally unfair, particularly as the
Supreme Court held no public hearing and provided no reasons for its
decisions and as the domestic courts erred in assessment of facts and
application of the law. In his submissions he relied on Article 6 § 1
of the Convention.
- Having
carefully examined the applicant's submissions in the light of all
the material in its possession and insofar 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 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 306.596.82 (EUR 49,485) in respect of
pecuniary and EUR 10,000 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; it therefore rejects this claim. On
the other hand, it finds that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards him
EUR 1,800 under that head.
B. Costs and expenses
- The
applicant also claimed UAH 250 (EUR 40) for the costs and
expenses incurred before the Court.
- The
Government did not express an opinion on the matter.
- Regard
being had to the information in its possession and the circumstances
of the case, the Court considers that the sum claimed should be
awarded in full.
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 admissible and the remainder of the
application inadmissible;
- 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 44 § 2 of the Convention, EUR 1,840
(one thousand eight hundred forty euros) in respect of non-pecuniary
damage and costs and expenses, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
