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FIFTH
SECTION
CASE OF KUSHNARENKO v. UKRAINE
(Application
no. 18010/04)
JUDGMENT
STRASBOURG
13
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kushnarenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 18010/04) 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 Yevgeniy Ivanovich Kushnarenko (“the
applicant”), on 6 May 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
6 September 2007 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 1950 and lives in the village of Rozdolne, the
Crimea.
- On
4 July 2000 the applicant lodged complaint with the Rozdolne District
Court against two private agricultural companies “Chernyshevsky”
(C.) and “Prymorsky” (P.), seeking to recover salary
arrears.
- The
first hearing was fixed for 12 October 2000.
- Between
October 2000 and October 2003 eight out of fifteen hearings were
postponed due to the respondents' representatives' failure to appear
before the court.
- In
May 2001 the proceedings were suspended as the term of office of the
presiding judge had expired.
- The
proceedings were resumed in March 2003.
- On
7 October 2003 the applicant's claims were allowed in full.
- The
judgment was not appealed against and became final on 7 November
2003.
- The
applicant was provided with a written copy of the judgment on 18
November 2003.
- In
the course of 2004 the amount awarded to the applicant against C. was
paid in full.
- The
enforcement proceedings against P. were suspended on an unspecified
date as the company was insolvent and this part of the judgment of 7
October 2003 remains unenforced.
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 contested that argument.
- The
period to be taken into consideration began on 4 July 2000.
The judicial stage of the proceedings ended, at the earliest, on 7
October 2003, when the applicant's claim was successful, and the
applicant received the written copy of the judgment a little over a
month later. The judicial proceedings thus lasted over three years
and three months for one level of jurisdiction. The judgment debt
against C. was paid in 2004; the enforcement proceedings against P.
have been suspended as the company is insolvent.
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 notes that the dispute in question concerned recovery of the
applicant's salary arrears. What was at stake for the applicant was
of undeniable importance for him and called for an expeditious
decision on his claims (see Golovko v. Ukraine,
no. 39161/02, § 54, 1 February 2007). However, in
the Court's opinion the national authorities did not act with the
requisite diligence as, for a period of almost two years – from
May 2001 to March 2003 - the proceedings were suspended for one year
and ten months after the presiding judge's term of office had
expired. The Court further notes that the hearings were on numerous
occasions postponed due to the respondents' representatives' failure
to appear before the court. However, the domestic court failed to
take any steps to assure the presence of those persons in order to
proceed with the 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, Smirnova v.
Ukraine, no. 36655/02,
8 November 2005 and Ogurtsova
v. Ukraine,
no. 12803/02, 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 the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
24. The applicant also
complained that the unreasonable length of the proceedings was in
violation of Article 13 of the Convention.
- Having
regard to its findings under Article 6 § 1 (see paragraphs 22 23
above), the Court concludes that this complaint is admissible, but
considers that it is not necessary to rule whether, in this case,
there has been a violation of Article 13 of the Convention (see,
Kukharchuk v. Ukraine, no. 10437/02, §§
39-40, 10 August 2006).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 2 of the Convention about the
non-enforcement of the judgment in his favour.
- However,
in the light of all the materials in its possession, the Court finds
that these submissions 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 being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 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
applicant claimed 5,000,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards award him EUR 1,400
under that head.
B. Costs and expenses
- In
the present case the applicant failed to submit any claims; the Court
therefore makes no award.
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;
- Holds that there is no need to examine
separately the applicant's complaint under Article 13 of the
Convention;
- 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 1,400 (one
thousand four hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, 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 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 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
