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FIFTH
SECTION
CASE OF MKRTCHYAN v. UKRAINE
(Application
no. 21939/05)
JUDGMENT
STRASBOURG
20 May
2010
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 Mkrtchyan v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21939/05) 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 Yegor Misakovich Mkrtchyan (“the
applicant”), on 27 May 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
10 November 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in the town of Poltava, Ukraine.
1. Background to the case
- By
judgment of 1 February 1999 the Kyivsky District Court of Poltava
(hereafter “the District Court”) ordered U., a private
company, to reinstate the applicant at work and pay him salary
arrears in the amount of 1,916.20 Ukrainian hryvnias (UAH, about
425.95 euros). This judgment remained unenforced.
- On
an unspecified date the debtor company had undergone a
reorganisation, changing, inter alia, its name from U. to K.
2. Court proceedings against K. company
- In
view of that fact, on 28 May 2001 the applicant lodged a claim with
the same court, seeking a declaration that K. had succeeded U. In
this regard he also claimed salary arrears in the sum of UAH 1,916.20
(which corresponded to the amount already awarded to him by judgment
of 1 February 1999) and other payments allegedly owed to him by
K. company.
- The
first hearing was scheduled on 20 September 2001. It was adjourned
since the case was transferred to another judge.
- Between
21 September 2001 and 20 December 2002 the District Court scheduled
six hearings, two of them were adjourned since the company's
representative failed to appear. On two other occasions the hearings
were adjourned since the both parties failed to appear. One hearing
was adjourned at the applicant's request, and one since the judge was
involved in other proceedings.
- In
the period from 21 December 2002 and 19 May 2003 there was no
procedural activity.
- Between
20 May 2003 and 17 February 2004 the District Court scheduled three
hearings, two of them were adjourned since the company's
representative failed to appear and one because the judge was ill.
- The
hearings scheduled for 18 February and 8 April 2004 were not held as
neither of the parties appeared before the District Court. For this
reason, on the latter date the District left the applicant's claim
without consideration. On 24 February 2005 the Poltava Regional Court
of Appeal, ruling on the applicant's appeal, found that the applicant
had not been properly summoned and, accordingly, quashed the decision
of 8 April 2004 and remitted the case for further examination on the
merits.
- On
26 August 2004 the Poltava Commercial Court liquidated K. company
and the latter was subsequently removed from the relevant companies'
register.
- Between
March 2005 and July 2005 the District Court scheduled two hearings.
The both were adjourned since the company's representative failed to
appear.
- On
30 May 2005 the District Court asked the Poltava Tax Inspectorate to
provide it with information about the company. On 15 June 2005 the
latter informed the District Court that the company had been
liquidated.
- In
July 2005, after the applicant had learned that K. company had ceased
to exist, he requested the District Court to terminate the
proceedings. Accordingly, on 27 July 2005 the District Court
discontinued the proceedings.
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 28 May 2001 and ended
on 27 July 2005. It thus lasted four years and two months for two
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 Frydlender, cited above).
- 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 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant further complained that the length of the proceedings
complained of had infringed his right to the peaceful enjoyment of
his possessions, as guaranteed by Article 1 of Protocol No. 1.
- The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to its finding under Article 6 § 1 (see paragraph 23
above), the Court considers that it is not necessary to examine
whether, in this case, there has been a violation of Article 1 of
Protocol No. 1 (see Zanghì v. Italy, judgment of 19
February 1991, Series A no. 194-C, p. 47, § 23).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 and Article 1
of Protocol No. 1 about the non-enforcement of the judgment of 1
February 1999.
- The
Court reiterates that in the enforcement
proceedings against private persons the responsibility of the State
is limited to the organisation and proper conduct of such enforcement
proceedings (see Shestakov v. Russia
(dec.), no. 48757/99, 18 June 2002). The Ukrainian
legislation provides for a possibility to challenge before the courts
the lawfulness of actions and omissions of the State Bailiffs'
Service in enforcement proceedings and to claim damages from that
Service for delays in payment of the awarded amount (see, for
instance, Dzizin v. Ukraine
(dec.), no. 1086/02, 24 June 2003; Kukta
v. Ukraine (dec.),
no. 19443/03, 22 November 2005). In the present case, the
applicant did not apply to any domestic court against the Bailiffs to
challenge their alleged omissions or inactivity.
- It
follows that this part of the application must be declared
inadmissible for non-exhaustion of domestic remedies, pursuant to
Article 35 §§ 1 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 UAH 1,916.20 in respect of pecuniary damage. He
further alleged that he had suffered non-pecuniary damage. He left
the matter to the Court's discretion.
- The
Government contested the 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, ruling on an equitable basis, it awards the applicant
EUR 1,300 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no separate claim as to costs and expenses. Therefore,
the Court makes no award under this head.
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 complaints under Article 6 § 1
and Article 1 of Protocol No. 1 concerning the excessive length of
the proceedings admissible and his complaint about the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings;
- Holds
that there is no need to examine the complaint under Article 1 of
Protocol No. 1 to the Convention about the excessive length of the
proceedings;
- 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 1,300 (one
thousand three 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 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
