FIFTH SECTION

CASE OF KOLESNIKOVA v. UKRAINE

(Application no. 7536/05)

JUDGMENT

STRASBOURG

3 March 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kolesnikova v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 8 February 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 7536/05) 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, Ms Valentina Yegorovna Kolesnikova (“the applicant”), on 12 February 2005.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3.  On 11 January 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
4.  The applicant was born in 1958 and lives in Slovyansk.
5.  In December 1994 she was injured while working at the State-owned company Donetska Zaliznytsia (“the company”, Донецька залізниця) and became partially disabled. Shortly afterwards the company voluntarily accepted full liability for the applicant’s disability.
A.  Proceedings instituted in 1995
6.  In December 1995 the applicant lodged a claim against Ch., the head physician of a hospital where she had been treated after having sustained the injury, seeking damages for allegedly inadequate medical treatment. In a judgment of 24 April 1996 the Slovyansk City Court (“the City Court”) rejected her claim. On 6 June 1996 and 28 March 2003, the Donetsk Regional Court (since June 2001 the Donetsk Regional Court of Appeal) and the Supreme Court respectively, upheld this judgment.
B.  Proceedings instituted in 1996
7.  On 6 December 1996 the applicant lodged four separate claims with the City Court against the company seeking respectively: compensation for salary arrears, medical expenses and issuance or compensation of cost of sanatorium voucher; annulment of a reprimand; payment of health allowances; and placement to a certain post. On 9 December 1996 the court requested her to rectify shortcomings in her fourth claim. On 17 April 1997 she lodged a fifth claim seeking redeployment to a certain post at the company.
8.  On 5 May 1997 the applicant was dismissed for repeated failure to perform her duties.
9.  On 27 May 1997 she lodged a sixth claim seeking her reemployment and payment of damages.
10.  On 3 June 1997 the City Court returned the fourth claim to the applicant. On 17 June 1997 it left the second claim unexamined, the applicant having failed to appear before it. On an unspecified date in July 1997 the court held the first hearing on the applicant’s claims. There is no indication whether the claims were joined, and if so when.
11.  On 15 October 1997 the Donetsk Regional Court quashed the decision of 17 June 1997. In a judgment of 11 June 2003, the City Court rejected the applicant’s claims, including the overall claim for UAH 183,183 (EUR 29,309 euros, EUR) in damages. On 3 February and 17 December 2004 the Donetsk Regional Court of Appeal (“the Court of Appeal”) and the Supreme Court respectively, upheld this judgment. On 11 January 2007 the Supreme Court rejected the applicant’s request for a re-hearing of her case by way of extraordinary review.
12.  According to the Government, between 11 September 1997 and 17 December 2004 the applicant modified her claims on four occasions, filed four procedural requests and three appeals, always complying with the procedural requirements. Of the seventy three hearings scheduled during the same period of time, eleven were adjourned due to the defendant’s or witness’s failure to attend, ten were adjourned at the applicant’s request, seven were adjourned due to the applicant’s failure to attend, three were adjourned due to the both parties’ failure to attend, three were adjourned at the both parties’ request, two were adjourned at the defendant’s request, and four were adjourned for reasons beyond parties’ control.
C.  Proceedings instituted in 2004
13.  On 16 March 2004 the applicant brought an action against the company seeking recovery of her work book (трудова книжка) with rectified records, work-related arrears and non-pecuniary damages. In a judgment of 26 November 2004 the City Court dismissed her action. On 28 March 2005 the Court of Appeal upheld this judgment. On 21 May 2007 the Supreme Court, according to the Judicial System Act (as amended on 22 February 2007), transmitted the applicant’s case to the Kyiv Court of Appeal, which on 20 December 2007, sitting as a court of cassation, upheld the lower court’s decisions. According to the applicant, she learned about this decision on 9 February 2009 and appealed in cassation again. On 14 April 2009 the Supreme Court left her appeal unexamined, the case having been already reviewed.
D.  Criminal and disciplinary proceedings
14.  In 1995 the applicant instituted criminal proceedings against G., the company’s employee who allegedly was responsible for her injury in 1994. In 1998 G. was charged with work-safety negligence and amnestied. The applicant unsuccessfully pursued further prosecution of G.
15.  In August-October 1995 the City Court dealt with Ch.’s criminal claim for defamation brought against the applicant.
16.  According to the applicant, on 13 September 1995 B., a manager of the company, pushed her out of his office injuring her. She stated further that on 15 April 1997 an investigator of the Donetsk Railway Prosecutor’s Office, R., beat her up when escorting her in order to carry out investigative actions. During 1995-2003 the applicant succeeded in having criminal proceedings instituted in respect of the investigator and manager; the proceedings were terminated after investigation.
17.  In 1997-2003 the applicant unsuccessfully sought to bring criminal proceedings against Ch. for alleged violation of safety rules.
18.  In 2000-2008 she unsuccessfully sought to bring criminal and disciplinary proceedings against certain managers of the company for alleged abuse of authority. During the above-mentioned periods of time, she unsuccessfully sought to bring disciplinary proceedings against certain employees and managers of the company.
19.  The applicant did not join the criminal proceedings as a civil claimant.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20.  The applicant complained that the length of the proceedings instituted in 1996 had been incompatible with the “reasonable time” requirement, laid down in 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 ...”
21.  The Government contested that argument.
22.  The Court considers that the period to be taken into consideration began on 11 September 1997, when the Convention entered into force with regard to Ukraine. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 17 December 2004. It thus lasted seven years and three months for three levels of jurisdiction.
A.  Admissibility
23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
24.  The Government maintained that the proceedings had been complex in that the applicant’s action consisted of many claims, one of which required complex calculations. In their view, the parties to the proceedings had been responsible for several delays and the applicant herself by filing procedural requests and appeals. There had been no significant periods of inactivity attributable to the domestic courts, according to the Government.
25.  The applicant disagreed.
26.  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).
27.  The Court notes that what was at stake for the applicant required diligence on the part of the State authorities since the proceedings concerned her employment dispute (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230‑D).
28.  It further notes that the domestic courts examined the applicant’s claims jointly. Although, in the course of hearings, they were required to ascertain some documentary evidence, the issues before them, quantitatively and qualitatively, did not necessitate prolonged consideration of the case.
29.  With regard to the applicant’s conduct, the Court accepts that there were certain delays attributable to her (see paragraph 15 above). However, in respect of her procedural requests and appeals, the Court notes that the applicant merely exercised her procedural rights and cannot be blamed for using the avenues available to her under the domestic law in order to protect her interests (see, Silin v. Ukraine, no. 23926/02, § 29, 13 July 2006).
30.  As regards the Government’s contention that its tribunals were not responsible for the delays caused by the defendant, the Court recalls that it is for the domestic authorities to constrain the abusive and dilatory conduct of a party to civil proceedings. The defendant’s failure to attend court hearings significantly protracted the proceedings at issue (see paragraph 20 above). Although the courts had at their disposal ample machinery to ensure the defendant’s presence in the courtroom, there is no indication that they took any measures to sanction the defendant’s failure to appear or to consider the case in its absence (see, mutatis mutandis, Smirnova v. Ukraine, no. 36655/02, §§ 53 and 69, 8 November 2005). Therefore, this cannot be considered as exonerating the respondent State.
31.  The Court notes that certain complexity of the case and the conduct of the parties cannot explain the overall length of the proceedings at issue. It finds that the main delay in the proceedings took place during the examination at the first-instance court that lasted, taking into consideration the Court’s competence ratione temporis, five years and nine months.
32.  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.
33.  There has accordingly been a breach of Article 6 § 1 of the Convention.
II.  OTHER COMPLAINTS
34.  The applicant further complained under Article 2 § 1 of the Convention on account of the outcome of the proceedings instituted in 1996. Under the same heading, she alleged a violation on account of the events that allegedly took place on 13 September 1995 and 15 April 1997. Additionally, she claimed a violation of Articles 5 § 1 and 17 of the Convention as regards the latter event. Relying on Article 3 of the Convention, she also complained on account of the criminal prosecution brought against her. Under Article 4 § 1 of the Convention, she complained that she was unlawfully dismissed from work. She further 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 challenging the outcome and reasonableness of length of all the proceedings. Additionally, relying on Article 6 § 1 of the Convention, she complained of the Supreme Court’s refusal to examine her second appeal in cassation. The applicant further complained, referring to Articles 14 and 17 of the Convention, that no disciplinary proceedings were instituted against unspecified persons. Lastly, relying on Article 14 of the Convention, she complained on account of not being redeployed to another post in 1996.
35.  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.
36.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  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
38.  The applicant claimed UAH 1,607,904 (EUR 144,711) in respect of pecuniary and UAH 4,383,300 (EUR 394,497) in respect of non-pecuniary damage.
39.  The Government contested these claims.
40.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged and, therefore, rejects this claim. On the other hand, it considers that the applicant must have sustained non-pecuniary damage which cannot be sufficiently compensated by the sole finding of a violation. Making its assessment on an equitable basis and having regard to the particular circumstances of the case, the Court awards the applicant EUR 1,200 under that head.
B.  Costs and expenses
41.  The applicant also claimed various sums for the costs and expenses incurred before the domestic courts and the Court.
42.  The Government admitted that she incurred UAH 633 (about EUR 57) in postal expenses before the Court.
43.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 60 covering costs and expenses under all heads.
C.  Default interest
44.  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
1.  Declares the complaint concerning the excessive length of the proceedings instituted in 1996 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings;

3.  Holds
(a)  that the respondent State is to pay the applicant within three months, EUR 1,200 (one thousand two hundred euros) in respect of non-pecuniary damage and EUR 60 (sixty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable on 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič
	Deputy Registrar	President