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FIFTH
SECTION
CASE OF KOBCHENKO v. UKRAINE
(Application
no. 37138/04)
JUDGMENT
STRASBOURG
21
December 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Kobchenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37138/04) 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 Vladimir Vladimirovich Kobchenko (“the
applicant”), on 9 October 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
21 October 2009 the
President of the Fifth Section decided to communicate the complaints
concerning the length of the proceedings to the Government. In
accordance with Protocol No. 14 of the Convention, the application
was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Dnipropetrovsk, Ukraine.
- On
11 December 1998 a local hospital, upon the request of the
applicant’s employer, issued a certificate (“the
Certificate”) confirming that the applicant had undergone an
eight-month medical treatment. The Certificate also specified the
applicant’s diagnosis and recommended that his employment
should not include night-watchman duties, emotional stresses or
irregular working hours.
- On
17 December 1998 the applicant was dismissed from his job for health
reasons. His claim against the former employer in respect of
reinstatement and recovery of salary arrears was rejected by final
decision of the Supreme Court on 7 September 2001. The courts
established, inter alia, that the Certificate was lawful and
did not breach the applicant’s right to private life as the
diagnosis had also been reflected in the sick-leave certificates
possessed by the employer.
- On
22 August 2000 the applicant instituted proceedings against the local
hospital in the Leninskyy District Court of Dnipropetrovsk claiming
that the Certificate was unlawful in so far as it had been issued in
breach of his right to private life and seeking damages.
- On
5 May 2001 the court referred the claim to the
Amur-Nyzhnyodniprovskyy District Court of Dnipropetrovsk (“the
District Court”) in view of its lack of territorial
jurisdiction over the case.
- By
a letter of 20 November 2001 the President of the District Court
returned the claim to the applicant noting that the latter had failed
to comply with the procedural rules. No formal decision was taken.
- On
17 December 2001, following a complaint by the applicant, the
Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”)
ordered the President of the District Court to decide on the
admissibility of the applicant’s claim in accordance with the
procedural requirements.
- On
13 February 2002 the District Court declared the applicant’s
claim inadmissible.
- On
23 April 2002 the Court of Appeal quashed the decision of 13 February
2002 as unfounded and remitted the case to the District Court for
fresh consideration of admissibility.
- On
27 June 2002 the District Court declared the claim admissible and
scheduled a hearing in the case.
- On
19 April 2004 the District Court, having held a number of hearings,
rejected the applicant’s claim as unsubstantiated. It noted in
particular that the lawfulness of the Certificate had already been
verified by the courts in the applicant’s proceedings against
his employer and the relevant court decisions had become final and
binding.
- On
14 July 2004 the Court of Appeal rejected the applicant’s
appeal as unfounded and upheld the judgment of 19 April 2004.
- On
12 August 2004 the applicant lodged a cassation appeal with the
Supreme Court. On 11 July 2005 the Supreme Court informed the
applicant that its case list was overloaded but some administrative
solutions were to be implemented.
- On
16 June 2007 the Court of Appeal of the Autonomous Republic of
Crimea, acting as a court of cassation, rejected the applicant’s
cassation appeal as unfounded.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF LENGTH OF PROCEEDINGS
- The
applicant complained that the length of the proceedings in his case
against the local hospital 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 22 August 2000 and
ended on 16 June 2007. It thus lasted six years, nine months and
twenty six days 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
Government submitted that the length of the proceedings in question
was reasonable and the domestic judicial authorities were acting with
due diligence. In this regard they referred to the number and
regularity of hearings held and absence of substantial delays
attributable to the national courts. They also maintained that the
parties, whose conduct was not imputable to the respondent State,
themselves caused certain delays in the proceedings at issue, for
example, by failing to attend court hearings, introducing petitions
to adjourn the hearings, modifying the claim and lodging appeals
against court decisions.
- The
applicant disagreed that the period in question was reasonable.
- 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).
- Turning
to the circumstances of the present case, the Court observes that the
subject-matter of the case at issue could not be considered
particularly complex and the domestic courts’ decisions were
largely based on the findings reached in the applicant’s
reinstatement dispute (see, e.g., Dulskiy v. Ukraine, no.
61679/00, § 75, 1 June 2006).
- The Court does not accept the Government’s
contention that the applicant contributed to the length of the
impugned proceedings. The applicant cannot be blamed for lodging
appeals and using the avenues available to him under domestic law in
order to protect his interests (see, Silin v. Ukraine,
no. 23926/02, § 29, 13 July 2006). In the present case, the
Court sees no periods of substantial delay for which the applicant
was responsible (see, e.g., Svetlana Naumenko v. Ukraine,
no. 41984/98, § 82, 9 November 2004).
- It
is further mentioned that the parties’ conduct do not exonerate
the respondent State as it is the role of the domestic courts to
manage their proceedings so that they are expeditious and effective
(see, e.g., Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 183, ECHR 2006 V and
Nesterova v. Ukraine, no. 10792/04, §
43, 28 May 2009). In the present case, the Court considers that
no specific period should be deducted from the overall length as
being attributable to the applicant’s procedural behaviour.
- The
Court points out that the proceedings prior to taking the first
instance court’s decision on the merits lasted for about three
years and eight months (see paragraphs 7-14 above) and the
applicant’s appeal in cassation was pending for more than two
years and ten months (see paragraphs 16-17 above), which cannot
be considered as reasonable and proper administration of justice.
- 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, and Efimenko v. Ukraine,
no. 55870/00, § 58, 18 July 2006).
- 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 also complained under Article 6 § 1 of the Convention
about unfair outcome of the proceedings against the local hospital
and the courts’ incorrect assessment of evidence and
interpretation of the law. He further complained under Article 8 of
the Convention that the Certificate contained his personal data and
was issued in breach of his right to private life.
- Having
carefully considered the applicant’s submissions in the light
of all the material in its possession, 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 50,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. However, ruling on an equitable basis, it awards him EUR 600
under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head. 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 under Article 6 § 1
of the Convention 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
(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 28 § 2 of the Convention, EUR 600 (six hundred
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into 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 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
