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FIFTH
SECTION
CASE OF MIKHAYLENKO v. UKRAINE
(Application
no. 18389/03)
JUDGMENT
STRASBOURG
15 May
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 Mikhaylenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 22 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 18389/03) 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 Vladimir Antonovich Mikhaylenko
(“the applicant”), on 25 March 2003.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
9 May 2006 the Court
declared the application partly inadmissible and 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
A. Background
- The
applicant was born in 1927 and lives in Simferopil.
- On
22 May 1992 the applicant was employed by a private company
(“the Company”). No written documents concerning
conditions of the employment were produced at the material time.
- On
1 July 1992 a contract was signed between the applicant,
Mr I., the sole owner of the Company, and Mr G., referred
to in the contract as the Company director. Pursuant this contract
the applicant was entitled to 30% of the Company’s profits,
which could be invested into the Company. The contract referred to
the applicant as a co-founder of the Company. Subsequently the
Company was re-organized, three individuals - the aforementioned
Mr G. and Mr I., and a certain Mrs G. having been
registered as its co-founders.
- In
January 1997 the applicant resigned. According to a contract, signed
on 1 August 1997 by him and Mr G., the Company was to
pay the applicant the equivalent of 7,930 dollars (USD) in monthly
instalments over a four-year period as the share of profit owed
pursuant to the contract of July 1992.
B. Civil proceedings
- In
1998 the applicant instituted civil proceedings in the Kyivskiy
District Court of Simferopil (the “District Court;”
Київський
районний суд
м. Сімферополя)
complaining that in December 1997 the Company had discontinued
the monthly payments under the contract of August 1997.
According to the applicant, the proceedings at issue were instituted
on 14 March 1998. According to the Government, they were
instituted on 28 April 1998. According to the text of the
District Court judgment of 18 May 2000, which is the only
case-file document referring to the date of the institution of the
proceedings, they were instituted on 21 April 1998.
- Between
August 1998 and September 1999 the court scheduled ten
hearings, two of them being adjourned on account of the absence of
the applicant’s representative, one on account of the parties’
absence, and one on account of court business.
- On
16 September 1999 the District Court dismissed the
applicant’s claims, having found that the contracts of
July 1992 and August 1997 were null and void.
In particular, the court observed that labour legislation at the
material time distinguished between ordinary open-ended employment
agreements (трудовий
договір), which could
be concluded orally, and special written employment contracts
(контракт),
which, to be valid, had to comply with a number of formalities
prescribed by law. The court held that the applicant had been hired
on the basis of an oral employment agreement, since the contract of
July 1992 lacked a number of essential clauses and had not been
executed in accordance with necessary formalities. Furthermore, the
contract falsely referred to the applicant as the Company co-founder
and to Mr G. as the Company director. The court further found
that the annulment of the contract of July 1992 entailed the
annulment of the contract of August 1997, which referred to it,
and that, furthermore, Mr G. needed the consent of the other
co-founders to execute it.
- On
6 December 1999 the Supreme Court of the Crimea (the “Court of
the Crimea;” Верховний
суд Автономної
Республіки
Крим)
quashed the judgment of 16 September 1999 on the
applicant’s appeal in cassation and referred the case to
another District Court judge. In its reasoning, the court stated that
the District Court had failed to carry out a comprehensive
investigation into the facts and to ensure their proper assessment.
In particular, it had failed to clarify the nature of the
relationship between the parties and to determine which law was
applicable.
- In
March 2000 the applicant amended his claims, seeking default
interest and other additional payments under the contracts of
July 1992 and August 1997. He also claimed non-pecuniary
damage on account of the delay in payment, as, being an indigent
pensioner of an advanced age, he suffered from hearing loss and a
number of other ailments and lacked funds for purchasing a hearing
aid and other medical necessities.
- Between
April and May 2000 the District Court scheduled three hearings.
- On
18 May 2000 the District Court dismissed the applicant’s
claims, referring to essentially the same grounds, as in its earlier
judgment. In particular, it found that the applicant’s
employment had been pursuant an oral agreement, the contract of
July 1992 lacked essential clauses and falsely referred to the
applicant as a co-founder of the Company. Moreover, Mr G. had
signed the contract ultra vires. The court further found that
the annulment of the contract of July 1992 entailed the
annulment of the contract of August 1997.
- On
14 June 2000 the Court of the Crimea quashed the judgment
of 18 May 2000 on the applicant’s appeal in cassation
and referred the case to another District Court judge. By way of
reasoning, the Court of the Crimea stated that the District Court had
failed to comply with its earlier instructions and urged the new
judge to follow these instructions more thoroughly.
- On
4 August 2000 the judge, who rendered the judgment of
18 May 2000, petitioned the President of the Court of the
Crimea to lodge a protest against the decision of 14 June 2000,
insisting that her judgment had been properly reasoned. On
8 September 2000 her request was rejected.
- Between
November 2000 and November 2001 the District Court
scheduled ten hearings, four of them being adjourned on account of
court business, two on account of the defendant’s absences and
one to allow for the friendly settlement negotiations.
- On
5 November 2001 the District Court dismissed the
applicant’s claims referring to essentially the same grounds,
as in the previous judgments. In addition to the reasons for
invalidating the contract of August 1997 mentioned in the
judgment of 18 May 2000, the court held, similarly to what
it had held in the judgment of 16 September 1999, that this
contract could not be executed by a sole co-founder.
- On
16 January 2002 the Court of the Crimea upheld the judgment
of 5 November 2001 on appeal.
- On
27 December 2002 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
A. Admissibility
- 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
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
Government contended that the length of the proceedings had not been
excessive, regard being had to the applicant’s repetitive
appeals, adjournments of hearings on his account and amendment of
claims.
- The
applicant disagreed. He submitted that speedy resolution of the case
was of significant importance to him in view of his advanced age,
poor health and small pension. He further noted that he had
reasonably relied on the successful outcome of the proceedings, in
particular, once the Company had acknowledged the debt. He further
maintained that major delays were caused by repetitive re-examination
by different judges of the same issues on the same grounds.
- The
Court notes, at the outset, that due to unavailability of accurate
records, it remains unclear, whether the proceedings were instituted
in March or April 1998 (see paragraph 8 above). On
27 December 2002 the proceedings ended. They thus lasted
four years and at least eight months for three levels of
jurisdiction.
- The
Court reiterates that the reasonableness of the length of these
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).
- In
this regard the Court recalls that the proceedings at issue concerned
compensation for the applicant’s labour. It finds that what was
at stake for the applicant called for expeditious decision on his
claims (see, among other authorities, Golovko v. Ukraine,
no. 39161/02, §§ 54-55, 1 February 2007 and
Inkovtsova v. Ukraine, no. 39946/03, § 26,
26 July 2007), especially in view of his submissions before
the domestic courts concerning his advanced age, poor health and lack
of funds for medical expenses.
- As
regards the conduct of the parties, notwithstanding certain delays
generated by the applicant’s conduct, the Court finds that
major protraction in the final disposition of the case was caused by
repetitive remittals. It reiterates that the repetitive
re-examination of the claims within one set of proceedings can
disclose a serious deficiency in the domestic judicial system (see
Wierciszewska v. Poland, no. 41431/98, § 46,
25 November 2003; Moroz and Others v. Ukraine,
no. 36545/02, § 60, 21 December 2006).
Although the Court has previously rejected some similar cases
concerning repeated remittals, having observed that the judicial
authorities had acted diligently in handling a complex matter (see
e.g. Zhurba v. Ukraine (dec.), no. 11215/03 ,
19 June 2007; Bespalov v. Ukraine (dec.),
no. 11484/05, 15 January 2008), it cannot find a similar
justification for remittals in the present case.
- The
Court observes, in particular, that in its two decisions ordering a
fresh consideration, the Court of the Crimea broadly referred to an
unsatisfactory factual and legal analysis carried out by the trial
court, rather than instructing it to re-assess a particular complex
issue or to test a certain legal theory against marginal facts. It
further observes that in all three judgments on the merits, the trial
court relied on essentially the same factual and legal reasoning,
which, in the end, was accepted by the higher courts.
- Furthermore,
as regards the diligence of the judicial authorities in handling the
applicant’s case, the Court takes note of the apparent lack of
accuracy in the case-file records (see paragraphs 8 and 25
above) and several adjournments of the hearings on account of the
court business.
- Having
regard to the information in its possession and 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. 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 USD 7,930 in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 800
under that head.
B. Costs and expenses
- The applicant did not submit any separate claim under
this head; the Court therefore makes no award in this respect.
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 remainder of the application
admissible;
- 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 from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 800 (eight hundred Euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into the national currency 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 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
