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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
- 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.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
- 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
- The
applicant was born in 1953 and lives in Boryspil, the Kyiv Region.
- 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.
- On
6 December 1999 the court dismissed the applicant’s claims as
lodged out of time. The applicant appealed in cassation.
- 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.
- On
14 November 2000 the Inter-Regional Court allowed in part the
applicant’s claims.
- 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.
- 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.
- On
20 December 2001 the Supreme Court sent the applicant’s case
for examination to the Obolonskyy District Court of Kyiv.
- On
17 May 2002 the latter court allowed the applicant’s claims in
part. The applicant appealed against that judgment.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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 contested that argument.
- 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
- 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
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).
- 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.
- 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.
- 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.
- 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).
- 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
- The
applicant complained under Articles 6 § 1 about the outcome and
of unfairness of the proceedings.
- 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.
- 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
- 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 3,500 euros (EUR) in respect of pecuniary damage
and EUR 2,500 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 awards the applicant EUR 2,100 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 500 for costs and expenses.
- The
Government left the matter to the Court’s discretion.
- 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
- 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 under Article 6 § 1
of the Convention concerning the 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;
- 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;
- 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
