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FIFTH
SECTION
CASE OF KLIMENKO v. UKRAINE
(Application
no. 15935/06)
JUDGMENT
STRASBOURG
17
February 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Klimenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Karel
Jungwiert,
Isabelle Berro-Lefèvre, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 15935/06) 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, Ms Zoya Antonovna Klimenko (“the applicant”),
on 6 April 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Yuriy Zaytsev.
- On
8 February 2010 the
Court 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 1951 and lives in Sevastopol.
A. Reinstatement proceedings
- On
25 March 1998 the applicant was dismissed from her position of Head
of Department at the State-owned bank, O. (“the bank”).
- On
21 April 1998 she lodged a claim against the bank seeking the
reinstatement and compensation for pecuniary and non-pecuniary
damage.
- On
14 December 1998 Gagarinsky District Court of Sevastopol (“the
District Court”) fined the bank following its three consecutive
failures to appear before the court.
- On
13 January 1999 the District Court partly allowed the applicant’s
claim.
- On
13 April 1999 the Sevastopol City Court (“the Court of Appeal”,
since June 2001, the Sevastopol Court of Appeal) quashed that
judgment and sent the case back to the District Court which, on 17
February 2000 dismissed the applicant’s claim. This judgment
was upheld by the Court of Appeal on 21 March 2000.
- On
20 November 2002 the Supreme Court, dealing with the applicant’s
appeal in cassation lodged under the Code of Civil Procedure (as
amended by the Law of 21 June 2001), quashed the lower court’s
decisions and remitted the case to the District Court which, in a
judgment of 24 May 2004 partly granted the applicant’s claim
awarding her UAH 114,837 (EUR 17,226)
and UAH 50,000 (EUR 7,500) in compensation for pecuniary and
non-pecuniary damage respectively.
- On
6 August 2004, the Court of Appeal amended that judgment reducing the
compensation for non-pecuniary damage to UAH 5,000 (EUR 750).
This ruling was executed in February 2005.
- On
9 November 2005 the Supreme Court reversed the lower courts’
decisions in respect of the non-pecuniary damages upholding the
remainder of their decisions.
- On
26 June 2006 the District Court, being bound by the Supreme Court’s
decision, ordered the applicant to reimburse the defendant UAH 5,000.
On 31 August 2006 the Court of Appeal quashed this decision. The
parties did not appeal.
- In
the course of the proceedings, the applicant modified her claims
three times, filed one procedural request and five appeals or
supplements to appeals, which all met procedural requirements.
- According to the Government, of
the 37 hearings scheduled during the periods from 22 April 1998 to 21
March 2000 and from 20 November 2002 to 31 August 2006, seven hearing
were adjourned due to the defendant’s failure to attend, three
were adjourned due to the applicant’s failure to attend, and
one hearing was adjourned due to the both parties’ failure to
attend.
B. Criminal proceedings
- On
12 January 1999 the Nakhimovsky District Prosecutor of Sevastopol
opened a criminal investigation against the applicant on suspicion of
abuse of authority. Until 28 December 2001, the investigation was
terminated and reopened three times.
- On
31 May 2008 the investigation was reopened for the fourth time. This
decision was quashed on 15 July 2008 by the Nakhimovsk District Court
of Sevastopol. On 31 July 2008 the Court of Appeal upheld the
District Court’s decision. The investigation was pending for
about two years and two months overall.
THE LAW
I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS
- The
applicant complained under Articles 6 § 1 and 13 of
the Convention that the length of the reinstatement proceedings was
not reasonable. The Court finds that this complaint falls to be
examined solely under Article 6 § 1 of the Convention which
reads, in so far as relevant, 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.
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 contested the applicant’s complaint, stating that
there had been no significant period of inactivity attributable to
the State. They maintained that the case had been complex and that
the judicial authorities had acted with due diligence. Moreover, the
parties to the domestic proceedings had been responsible for several
delays, according to the Government.
- 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, e.g., Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court will take into
account only those periods when the case was actually pending before
the courts, thus excluding from calculation those periods between the
adoption of the final and binding judgments and their revocation in
the course of the extraordinary proceedings (see Markin
v. Russia
(dec.), no.
59502/00, 16 September 2004, and Pavlyulynets
v. Ukraine,
no. 70767/01, §§ 41-42, 6 September 2005).
Turning to the present case, the Court observes that the
period to be taken into consideration
started on 21 April 1998.
It notes in this respect that the Court of Appeal’s
ruling of 21 March 2000 (see paragraph 9 above) constituted a res
judicata, and it was only by virtue of the introduction of the
new transitional remedy on 21 June 2001 (see paragraph 10 above) that
the applicant was able to challenge this ruling. In such
circumstances, the applicant’s appeal in cassation to the
Supreme Court to challenge the proceedings which had been brought to
an end by a final decision must be seen as akin to a request to
reopen those proceedings by means of the extraordinary transitional
remedy provided for by the Law of 21 June 2001 (see Prystavska v.
Ukraine (dec.), no. 21287/02, ECHR 2002 X). Therefore,
the period from 21 March 2000 to 20 November 2002 cannot
be taken into account.
- After
the Supreme Court had remitted the claim to the District Court, the
proceedings at three levels of judicial instances continued until
31 August 2006. The period
to be taken into consideration thus lasted more than five years and
eight months for three levels of jurisdiction.
- The
Court considers that what was at stake for the applicant required
diligence on the part of the State authorities since the proceedings
concerned an employment dispute (see Ruotolo
v. Italy, 27 February 1992, § 17,
Series A no. 230 D).
- Although
the domestic courts were required to examine a certain amount of
documentary evidence, the issues before them were not of such a
nature as to necessitate prolonged consideration of the applicant’s
case. Therefore, the Court concludes that the subject matter of the
litigation at issue cannot be considered particularly complex.
- The Court notes that the
complexity of the case and the applicant’s conduct cannot
explain the overall length of the proceedings at issue. It considers
that a number of delays are attributable to the State. In particular,
there was procedural inactivity when the
case was pending before the
first-instance court for more than three years. Additionally, the
consideration of the applicant’s appeal in cassation lasted
fourteen months (see paragraph 13 above).
- 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. OTHER COMPLAINTS
- The
applicant further complained under Article 3 of
the Convention on account of the excessive length of the
reinstatement proceedings. She also alleged
a violation of Articles 6 § 1 and 13 of the Convention in
respect of the courts’ assessment of evidence and
interpretation of the national law and challenged the outcome of
those proceedings. Finally, under Articles 6 § 1 and 13 of
the Convention she complained that the criminal proceedings brought
against her had been excessively long and conducted arbitrarily.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession and in so far as the matters
complained of are within its competence, 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 10,252 euros (EUR) in respect of pecuniary and EUR
15,762 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.
However, it considers that the applicant must have sustained
non-pecuniary damage as regards the excessive length of the
proceedings in her case. The Court, making its assessment on an
equitable basis, as required by Article 41 of the Convention,
considers that the finding of a violation constitutes in itself
sufficient just satisfaction for the non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,796 for the costs and expenses
incurred before the domestic courts and EUR 27 for those
incurred before the Court.
- The
Government contested the claim for the costs and expenses incurred
before the domestic courts. They left the remainder of the claim to
the Court’s discretion.
- Regard
being had to the documents in its possession and to its case-law, the
Court rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 27
for the proceedings before the Court.
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 reinstatement proceedings admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of length of the proceedings;
- Holds
that there is no need to examine the complaint under Article 13 of
the Convention;
- Holds
(a) that
the finding of a violation constitutes in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the applicant;
(b) that
the respondent State is to pay the applicant, within three months
EUR 27 (twenty seven euros), plus any tax that may be
chargeable, in respect of costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
on the date of settlement;
(c) 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 17 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
